Wesberry v. Sanders/Dissent Harlan

Mr. Justice HARLAN, dissenting.

I had not expected to witness the day when the Supreme Court of the United States would render a decision which casts grave doubt on the constitutionality of the composition of the House of Representatives. It is not an exaggeration to say that such is the effect of today's decision. The Court's holding that the Constitution requires States to select Representatives either by elections at large or by elections in districts composed 'as nearly as is practicable' of equal population places in jeopardy the seats of almost all the members of the present House of Representatives.

In the last congressional election, in 1962, Representatives from 42 States were elected from congressional districts. In all but five of those States, the difference between the populations of the largest and smallest district exceeded 100,000 persons. A difference of this magnitude in the size of districts the average population of which in each State is less than 500,000 is presumably not equality among districts 'as nearly as is practicable,' although the Court does not reveal its definition of that phrase. Thus, today's decision impugns the validity of the election of 398 Representatives from 37 States, leaving a 'constitutional' House of 37 members now sitting.

Only a demonstration which could not be avoided would justify this Court in rendering a decision the effect of which, inescapably as I see it, is to declare constitutionally defective the very composition of a coordinate branch of the Federal Government. The Court's opinion not only fails to make such a demonstration, it is unsound logically on its face and demonstrably unsound historically.

Before coming to grips with the reasoning that carries such extraordinary consequences, it is important to have firmly in mind the provisions of Article I of the Constitution which control this case:

'Section 2. The House of Representatives shall be composed of     Members chosen  very second Year by the People of the several      States, and the Electors in each State shall have the      Qualifications requisite for Electors of the most numerous      Branch of the State Legislature.

'Representatives and direct Taxes shall be apportioned  among the several States which may be included within   this Union, according to their respective Numbers, which   shall be determined by adding to the whole Number of   free Persons, including those bound to Service for a   Term of Years, and excluding Indians not taxed, three   fifths of all other Persons. The actual Enumeration  shall be made within three Years after the first Meeting   of the Congress of the United States, and within every   subsequent Term of ten Years, in such Manner as they   shall by Law direct. The Number of Representatives shall  not exceed one for every thirty Thousand, but each State   shall have at Least one Representative *  *  *.

'Section 4. The Times, Places and Manner of holding Elections     for Senators and Representatives, shall be prescribed in each      State by the Legislature thereof; but the Congress may at any      time by Law make or alter such Regulations, except as to the      Places of chusing Senators.

'Section 5. Each House shall be the Judge of the Elections,     Returns and Qualifications of its own Members *  *  * .'

As will be shown, these constitutional provisions and their 'historical context,' ante, p. 7, establish:

1. that congressional Representatives are to be apportioned     among the several States largely, but not entirely, according      to population;

2. that the States have plenary power to select their     allotted Representatives in accordance with any method of      popular election they please, subject only to the supervisory      power of Congress; and

3. that the supervisory power of Congress is exclusive.

In short, in the absence of legislation providing for equal districts by the Georgia Legislature or by Congress, these appellants have no right to the judicial relief which they seek. It goes without saying that it is beyond the province of this Court to decide whether equally populated districts is the preferable method for electing Representatives, whether state legislatures would have acted more fairly or wisely had they adopted such a method, or whether Congress has been derelict in not requiring state legislatures to follow that course. Once it is clear that there is no constitutional right at stake, that ends the case.

Disclaiming all reliance on other provisions of the Constitution, in particular those of the Fourteenth Amendment on which the appellants relied below and in this Court, the Court holds that the provision in Art, I, § 2, for election of Representatives 'by the People' means that congressional districts are to be 'as nearly as is practicable' equal in population, ante, pp. 7-8. Stripped of rhetoric and a 'historical context,' ante, p. 7, which bears little resemblance to the evidence found in the pages of history, see infra, pp. 30-41, the Court's opinion supports its holding only with the bland assertion that 'the principle of a House of Representatives elected 'by the People" would be 'cast aside' if 'a vote is worth more in one district than in another,' ante p. 8, i.e., if congressional districts within a State, each electing a single Representative, are not equal in population. The fact is, however, that Georgia's 10 Representatives are elected 'by the People' of Georgia, just as Representatives from other States are elected 'by the People of the several States.' This is all that the Constitution requires.

Although the Court finds necessity for its artificial construction of Article I in the undoubted importance of the right to vote, that right is not involved in this case. All of the appellants do vote. The Court's talk about 'debasement' and 'dilution' of the vote is a model of circular reasoning, in which the premises of the argument feed on the conclusion. Moreover, by focusing exclusively on numbers in disregard of the area and shape of a congressional district as well as party affiliations within the district, the Court deals in abstractions which will be recognized even by the politically unsophisticated to have little relevance to the realities of political life.

In any event, the very sentence of Art. I, § 2, on which the Court exclusively relies confers the right to vote for Representatives only on those whom the State has found qualified to vote for members of 'the most numerous Branch of the State Legislature.' Supra, p. 22. So far as Article I is concerned, it is within the State's power to confer that right only on persons of wealth or of a particular sex or, if the State chose, living in specified areas of the State. Were Georgia to find the residents of the Fifth District unqualified to vote for Representatives to the State House of Representatives, they could not vote for Representatives to Congress, according to the express words of Art. I, § 2. Other provisions of the Constitution would, of course, be relevant, but, so far as Art. I, § 2, is concerned, the disqualification would be within Georgia's power. How can it be, then, that this very same sentence prevents Georgia from apportioning its Representatives as it chooses? The truth is that it does not.

The Court purports to find support for its position in the third paragraph of Art. I, § 2, which provides for the apportionment of Representatives among the States. The appearance of support in that section derives from the Court's confusion of two issues: direct election of Representatives within the States and the apportionment of Representatives among the States. Those issues are distinct, and were separately treated in the Constitution. The fallacy of the Court's reasoning in this regard is illustrated by its slide, bscured by intervening discussion (see ante, pp. 13-14), from the intention of the delegates at the Philadelphia Convention 'that in allocating Congressmen the number assigned to each State should be determined solely by the number of the State's inhabitants,' ante, p. 13, to a 'principle solemnly embodied in the Great Compromise-equal representation in the House for equal numbers of people,' ante, p. 14. The delegates did have the former intention and made clear provision for it. Although many, perhaps most, of them also believed generally-but assuredly not in the precise, formalistic way of the majority of the Court -that within the States representation should be based on populations, they did not surreptitiously slip their belief into the Constitution in the phrase 'by the People,' to be discovered 175 years later like a Shakespearian anagram.

Far from supporting the Court, the apportionment of Representatives among the States shows how blindly the Court has marched to its decision. Representatives were to be apportioned among the States on the basis of free population plus three-fifths of the slave population. Since no slave voted, the inclusion of three-fifths of their number in the basis of apportionment gave the favored States representation far in excess of their voting population. If, then, slaves were intended to be without representation, Article I did exactly what the Court now says it prohibited: it 'weighted' the vote of voters in the slave States. Alternatively, it might have been thought that Representatives elected by free men of a State would speak also for the slaves. But since the slaves added to the representation only of their own State, Representatives from the slave States could have been thought to speak only for the slaves of their own States, indicating both that the Convention believed it possible for a Representative elected by one group to speak for another nonvoting group and that Representatives were in large degree still thought of as speaking for the whole population of a State.

There is a further basis for demonstrating the hollowness of the Court's assertion that Article I requires 'one man's vote in a congressional election * *  * to be worth as much as another's,' ante, p. 8. Nothin  that the Court does today will disturb the fact that although in 1960 the population of an average congressional district was 410,481,  the States of Alaska, Nevada, and Wyoming each have a Representative in Congress, although their respective populations are 226,167, 285,278, and 330,066. In entire disregard of population, Art. I, § 2, guarantees each of these States and every other State 'at Least one Representative.' It is whimsical to assert in the face of this guarantee that an absolute principle of 'equal representation in the House for equal numbers of people' is 'solemnly embodied' in Article I. All that there is is a provision which bases representation in the House, generally but not entirely, on the population of the States. The provision for representation of each State in the House of Representatives is not a mere exception to the principle framed by the majority; it shows that no such principle is to be found.

Finally in this array of hurdles to its decision which the Court surmounts only by knocking them down is § 4 of Art. I which states simply:

'The Times, Places and Manner of holding Elections for     Senators and Representatives, shall be prescribed in each      State by the Legislature thereof; but the Congress may at any      time by Law make or alter such Regulations, except as to the      Places of chusing Senators.' (Emphasis added.)

The delegates were well aware of the problem of 'rotten boroughs,' as material cited by the Court, ante, pp. 14-15, and hereafter makes plain. It cannot be supposed that delegates to the Convention would have labored to establish a principle of equal representation only to bury it, one would have thought beyond discovery, in § 2, and omit all mention of it from § 4, which deals explicitly with the conduct of elections. Section 4 states without qualification that the state legislatures shall prescribe regulations for the conduct of elections for Representatives and, equally without qualification, that Congress may make or alter such regulations. There is nothing to indicate any limitation whatsoever on this grant of plenary initial and supervisory power. The Court's holding is, of course, derogatory not only of the power of the state legislatures but also of the power of Congress, both theoretically and as they have actually exercised their power. See infra, pp. 42-45. It freezes upon both, for no reason other than that it seems wise to the majority of the present Court, a particular political theory for the selection of Representatives.

There is dubious propriety in turning to the 'historical context' of constitutional provisions which speak so consistently and plainly. But, as one might expect when the Constitution itself is free from ambiguity, the surrounding history makes what is already clear even clearer.

As the Court repeatedly emphasizes, delegates to the Philadelphia Convention frequently expressed their view that representation should be based on population. There were also, however, many statements favoring limited monarchy and property qualifications for suffrage and expressions of disapproval for unrestricted democracy. Such expressions prove as little on one side of this case as they do on the other. Whatever the dominant political philosophy at the Convention, one thing seems clear: it is in the last degree unlikely that most or even many of the delegates would have subscribed to the principle of 'one person, one vote,' ante, p. 18. Moreover, the statements approving population-based representation were focused on the problem of how representation should be apportioned among the States in the House of Representatives. The Great Compromise concerned representation of the States in the Congress. In all of the discussion surrounding the basis of representation of the House and all of the discussion whether Representatives should be elected by the legislatures or the people of the States, there is nothing which suggests even remotely that the delegates had in mind the problem of districting within a State.

The subject of districting within the States is discussed explicitly with reference to the provisions of Art. I, § 4, which the Court so pointedly neglects. The Court states: 'The delegates referred to rotten borough apportionments in some of the state legislatures as the kind of objectionable governmental action that the Constitution should not tolerate in the election of congressional representatives.' Ante, p. 15. The remarks of Madison cited by the Court are as follows:

'The necessity of a Genl. Govt. supposes that the State     Legislatures will sometimes fail or refuse to consult the      common interest at the expense of their local conveniency or      prejudices. The policy of referring the appointment of the     House of Representatives to the people and not to the      Legislatures of the States, supposes that the result will be      somewhat influenced by the mode, (sic) This view of the      question seems to decide that the Legislatures of the States      ought not to have the uncontrouled right of regulating the      times places & manner of holdin  elections. These were words     of great latitude. It was impossible to foresee all the     abuses that might be made of the discretionary power. Whether     the electors should vote by ballot or viva voce, should      assemble at this place or that place; should be divided into      districts or all meet at one place, shd all vote for all the      representatives; or all in a district vote for a number      allotted to the district; these & many other points would      depend on the Legislatures. (sic) and might materially affect     the appointments.

Whenever the State Legislatures had a favorite measure to     carry, they would take care so to mould their regulations as      to favor the candidates they wished to succeed. Besides, the     inequality of the Representation in the Legislatures of      particular States, would produce a like inequality in their      representation in the Natl. Legislature, as it was presumable     that the Counties having the power in the former case would      secure it to themselves in the latter. What danger could     there be in giving a controuling power to the Natl. Legislature?' (Emphasis added.)

These remarks of Madison were in response to a proposal to strike out the provision for congressional supervisory power over the regulation of elections in Art. I, § 4. Supported by others at the Convention, and not contradicted in any respect, they indicate as clearly as may be that the Convention understood the state legislatures to have plenary power over the conduct of elections for Representatives, Including the power to district well or badly, subject only to the supervisory power of Congress. How, then, can the Court hold that Art. I, § 2, prevents the state legislatures from districting as they choose? If the Court were correct, Madison's remarks would have been pointless. One would expect, at the very least, some reference to Art. I, § 2, as a limiting factor on the States. This is the 'historical context' which the Convention debates provide.

Materials supplementary to the debates are as unequivocal. In the ratifying conventions, there was no suggestion that the provisions of Art. I, § 2, restricted the power of the States to prescribe the conduct of elections conferred on them by Art. I, § 4. None of the Court's references to the ratification debate supports the view that the provision for election of Representatives 'by the People' was intended to have any application to the apportionment of Representatives within the States; in each instance, the cited passage merely repeats what the Constitution itself provides: that Representatives were to be elected by the people of the States.

In sharp contrast to this unanimous silence on the issue of this case when Art. I, § 2, was being discussed, there are repeated references to apportionment and related problems affecting the States' selection of Representatives in connection with Art. I, § 4. The debates in the ratifying conventions, as clearly as Madison's statement at the Philadelphia Convention, supra, pp. 32-33, indicate that under § 4, the state legislatures, subject only to the ultimate control of Congress, could district as they chose.

At the Massachusetts convention, Judge Dana approved § 4 because it gave Congress power to prevent a state legislature from copying Great B itain, where 'a borough of but two or three cottages has a right to send two representatives to Parliament, while Birmingham, a large and populous manufacturing town, lately sprung up, cannot send one.' He noted that the Rhode Island Legislature was 'about adopting' a plan which would 'Deprive the towns of Newport and Providence of their weight.'  Mr. King noted the situation in Connecticut, where 'Hartford, one of their largest towns, sends no more delegates than one of their smallest corporations,' and in South Carolina: 'The back parts of Carolina have increased greatly since the adoption of their constitution, and have frequently attempted an alteration of this unequal mode of representation but the members from Charleston, having the balance so much in their favor, will not consent to an alteration, and we see that the delegates from Carolina in Congress have always been chosen by the delegates of that city.'  King stated that the power of Congress under § 4 was necessary to 'control in this case'; otherwise, he said, 'The representatives *  *  * from that state (South Carolina), will not he chosen by the people, but will be the representatives of a faction of that state.'

Mr. Parsons was as explicit.

'Mr. PARSONS contended for vesting in Congress the powers     contained in the 4th section (of Art. I), not only as those      powers were necessary for preserving the union, but also for      securing to the people their equal rights of election. * *  *      (State legislatures) might make an unequal and partial      division of the states into districts for the election of      representatives, or they might even disqualify one third of      the electors. Without these powers in Congress, the people     can have no remedy; but the 4th section provides a remedy, a      controlling power in a legislature composed of senators and      representatives of twelve states, without the influence of      our commotions and factions, who will hear impartially, and      preserve and restore to the people their equal and sacred rights of election. Perhaps it then will be objected, that from the supposed     opposition of interests in the federal legislature, they may      never agree upon any regulations; but regulations necessary      for the interests of the people can never be opposed to the      interests of either of the branches of the federal      legislature; because that the interests of the people require      that the mutual powers of that legislature should be      preserved unimpaired, in order to balance the government. Indeed, if the Congress could never agree on any regulations,     then certainly no objection to the 4th section can remain;      for the regulations introduced by the state legislatures will      be the governing rule of elections, until Congress can agree      upon alterations.'  (Emphasis added.)

In the New York convention, during the discussion of § 4, Mr. Jones objected to congressional power to regulate elections because such power 'might be so construed as to deprive the states of an essential right, which, in the true design of the Constitution, was to be reserved to them.' He proposed a resolution explaining that Congress had such power only if a state legislature neglected or refused or was unable to regulate elections itself. Mr. Smith proposed to add to the resolution ' * *  * that each state shall be divided into as many districts as the representatives it is entitled to, and that each representative shall be chosen by a majority of votes.'  He stated that his proposal was designed to prevent elections at large, which might result in all the representatives being 'taken from a small part of the state.'  He explained further that his proposal was not intended to impose a requirement on the other States but 'to enable the states to act their discretion, without the control of Congress.'  After further discussion of districting, the proposed resol tion was modified to read as follows:

'(Resolved) * *  * that nothing in this Constitution shall be      construed to prevent the legislature of any state to pass      laws, from time to time, to divide such state into as many      convenient districts as the state shall be entitled to elect      representatives for Congress, nor to prevent such legislature      from making provision, that the electors in each district      shall choose a citizen of the United States, who shall have      been an inhabitant of the district, for the term of one year      immediately preceding the time of his election, for one of      the representatives of such state.'

Despite this careful, advertent attention to the problem of congressional districting, Art. I, § 2, was never mentioned. Equally significant is the fact that the proposed resolution expressly empowering the States to establish congressional districts contains no mention of a requirement that the districts be equal in population.

In the Virginia Convention, during the discussion of § 4, Madison again stated unequivocally that he looked solely to that section to prevent unequal districting:

' * *  * (I)t was thought that the regulation of time, place,      and manner, of electing the representatives, should be      uniform throughout the continent. Some states might regulate     the elections on the principles of equality, and others might      regulate them otherwise. This diversity would be obviously     unjust. Elections are regulated now unequally is some states,     particularly South Carolina, with respect to Charleston, which is represented by thirty members. Should the     people of any state by any means be deprived of the right of      suffrage, it was judged proper that it should be remedied by      the general government. It was found impossible to fix the     time, place, and manner, of the election of representatives,      in the Constitution. It was found necessary to leave the     regulation of these, in the first place, to the state      governments, as being best acquainted with the situation of      the people, subject to the control of the general government,      in order to enable it to produce uniformity, and prevent its      own dissolution. And Considering the state governments and     general government as distinct bodies, acting in different      and independent capacities for the people, it was thought the      particular regulations should be submitted to the former, and      the general regulations to the latter. Were they exclusively     under the control of the state governments, the general      government might easily be dissolved. But if they be     regulated properly by the state legislatures, the      congressional control will very probably never be exercised. The power appears to me satisfactory, and as unlikely to be     abused as any part of the Constitution.'  (Emphasis added.)

Despite the apparent fear that § 4 would be abused, no one suggested that it could safely be deleted because § 2 made it unnecessary.

In the North Carolina convention, again during discussion of § 4, Mr. Steele pointed out that the state legislatures had the initial power to regulate elections, and that the North Carolina legislature would regulate the first election at least 'as they think proper.' Responding to the suggestion that the Congress would favor the seacoast, he asserted that the courts would not uphold nor the people obey 'laws inconsistent with the Constitution.'  (The particular possibilities that Steele had in mind were apparently that Congress might attempt to prescribe the qualifications for electors or 'to make the place of elections inconvenient.' ) Steele was concerned with the danger of congressional usurpation, under the authority of § 4, of power belonging to the States. Section 2 was not mentioned.

In the Pennsylvania convention, James Wilson described Art. I, § 4, as placing 'in o the hands of the state legislatures' the power to regulate elections, but retaining for Congress 'self-preserving power' to make regulations lest 'the general government * *  * lie prostrate at the mercy of the legislatures of the several states.'  Without such power, Wilson stated, the state governments might 'make improper regulations' or 'make no regulations at all.'  Section 2 was not mentioned.

Neither of the numbers of The Federalist from which the Court quotes, ante, pp. 15, 18, fairly supports its holding. In No. 57, Madison merely stated his assumption that Philadelphia's population would entitle it to two Representatives in answering the argument that congressional constituencies would be too large for good government. In No. 54, he discussed the inclusion of slaves in the basis of apportionment. He said: 'It is agreed on all sides, that numbers are the best scale of wealth and taxation, as they are the only proper scale of representation.' This statement was offered simply to show that the slave population could not reasonably be included in the basis of apportionment of direct taxes and excluded from the basis of apportionment of representation. Further on in the same number of the Federalist, Madison pointed out the fundamental cleavage which Article I made between apportionment of Representatives among the States and the selection of Representatives within each State:

'It is a fundamental principle of the proposed Constitution,     that as the aggregate number of representatives allotted to      the several States, is to be determined by a federal rule      founded on the aggregate number of inhabitants, so the right      of choosing this allotted number in each State is to be      exercised by such part of the inhabitants, as the State      itself may designate. The qualifications on which the right     of suffrage depend, are not perhaps the same in any two      States. In some of the States the difference is very     material. In every State, a certain proportion of inhabitants     are deprived of this right by the Constitution of the State,      who will be included in the census by which the Federal      Constitution apportions the representatives. In this point of     view, the southern States might retort the complaint, by      insisting, that the principle laid down by the Convention      required that no regard should be had to the policy of      particular States towards their own inhabitants; and      consequently, that the slaves as inhabitants should have been      admitted into the census according to their full number, in      like manner with other inhabitants, who by the policy of      other States, are not admitted to all the rights of      citizens.'

In the Federalist, No. 59, Hamilton discussed the provision of § 4 for regulation of elections. He justified Congress' power with the 'plain proposition, that every government ought to contain in itself the means of its own preservation.' Further on, he said:

'It will not be alledged that an election law could have been     framed and inserted into the Constitution, which would have      been always applicable to every probable change in the      situation of the country; and it will therefore not be denied      that a discretionary power over elections ought to exist      somewhere. It will, I presume, be as readily conceded, that     there were only three ways, in which this power could have      been reasonably modified and disposed, that it must either      have been lodged wholly in the National Legislature, or      wholly in the State Legislatures, or primarily in the latter,      and ultimately in the former. The last mode has with reason     been preferred by the Convention. They have submitted the     regulation of elections for the Federal Government in the      first instance to the local administrations; which in      ordinary cases, and when no improper views prevail, may be      both more convenient and more satisfactory; but they have      reserved to the national authority a right to interpose,      whenever extraordinary circumstances might render that      interposition necessary to its safety.'  (Emphasis added.)

Thus, in the number of the Federalist which does discuss the regulation of elections, the view is unequivocally stated that the state legislatures have plenary power over the conduct of congresssional elections subject only to such regulations as Congress itself might provide.

The upshot of all this is that the language of Art. I, §§ 2 and 4, the surrounding text, and the relevant history are all in strong and consistent direct contradiction of the Court's holding. The constitutional scheme vests in the States plenary power to regulate the conduct of elections for Representatives, and, in order to protect the Federal Government, provides for congressional supervision of the States' exercise of their power. Within this scheme, the appellants do not have the right which they assert, in the absence of provision for equal districts by the Georgia Legislature or the Congress. The constitutional right which the Court creates is manufactured out of whole cloth.

The unstated premise of the Court's conclusion quite obviously is that the Congress has not dealt, and the Court believes it will not deal, with the problem of congressional apportionment in accordance with what the Court believes to be sound political principles. Laying aside for the moment the validity of such a consideration as a factor in constitutional interpretation, it becomes relevant to examine the history of congressional action under Art. I, § 4. This history reveals that the Court is not simply undertaking to exercise a power which the Constitution reserves to the Congress; it is also overruling congressional judgment.

Congress exercised its power to regulate elections for the House of Representatives for the first time in 1842, when it provided that Representatives from States 'entitled to more than one Representative' should be elected by districts of contiguous territory, 'no one district electing more than one Representative.' The requirement was later dropped,  and reinstated. In 1872, Congress required that Representatives 'be elected by districts composed of contiguous territory, and containing as nearly as practicable an equal number of inhabitants, * *  * no one district electing more than one Representative.'  This provision for equal districts which the Court exactly duplicates in effect, was carried forward in each subsequent apportionment statute through 1911. There was no reapportionment following the 1920 census. The provision for equally populated districts was dropped in 1929, and has not been revived, although the 1929 provisions for apportionment have twice been amended and, in 1941, were made generally applicable to subsequent censuses and apportionments.

The legislative history of the 1929 Act is carefully reviewed in Wood v. Broom, 287 U.S. 1, 53 S.Ct. 1, 77 L.Ed. 131. As there stated:

'It was manifestly the intention of the Congress not to     re-enact the provision as to compactness, contiguity, and      equality in population with respect to the districts to be      created pursuant to the reapportionment under the act of      1929.

'This appears from the terms of the act, and its legislative     history shows that the omission was deliberate. The question     was up, and considered.' 287 U.S., at 7, 53 S.Ct. at 2.

Although there is little disc ssion of the reasons for omitting the requirement of equally populated districts, the fact that such a provision was included in the bill as it was presented to the House, and was deleted by the House after debate and notice of intention to do so,  leaves no doubt that the omission was deliberate. The likely explanation for the omission is suggested by a remark on the floor of the House that 'the States ought to have their own way of making up their apportionment when they know the number of Congressmen they are going to have.'

Debates over apportionment in subsequent Congresses are generally unhelpful to explain the continued rejection of such a requirement; there are some intimations that the feeling that districting was a matter exclusively for the States persisted. Bills which would have imposed on the States a requirement of equally or nearly equally populated districts were regularly introduced in the House. None of them became law.

For a period of about 50 years, therefore, Congress, by repeated legislative act, imposed on the States the requirement that congressional districts be equal in population. (This, of course, is the very requirement which the Court now declares to have been constitutionally required of the States all along without implementing legislation.) Subsequently, after giving express attention to the problem, Congress eliminated that requirement, with the intention of permitting the States to find their own solutions. Since then, despite repeated efforts to obtain congressional action again, Congress has continued to leave the problem and its solution to the States. It cannot be contended, therefore, that the Court's decision today fills a gap left by the Congress. On the contrary, the Court substitutes its own judgment for that of the Congress.

The extent to which the Court depa ts from accepted principles of adjudication is further evidenced by the irrelevance to today's issue of the cases on which the Court relies.

Ex parte Yarbrough, 110 U.S. 651, 4 S.Ct. 152, 28 L.Ed. 274, was a habeas corpus proceeding in which the Court sustained the validity of a conviction of a group of persons charged with violating federal statutes which made it a crime to conspire to deprive a citizen of his federal rights, and in particular the right to vote. The issue before the Court was whether or not the Congress had power to pass laws protecting the right to vote for a member of Congress from fraud and violence; the Court relied expressly on Art. I, § 4, in sustaining this power. Id., 110 U.S. at 660, 4 S.Ct. at 156. Only in this context, in order to establish that the right to vote in a congressional election was a right protected by federal law, did the Court hold that the right was dependent on the Constitution and not on the law of the States. Indeed, the Court recognized that the Constitution 'adopts the qualification' furnished by the States 'as the qualification of its own electors for members of Congress.' Id., 110 U.S. at 663, 4 S.Ct. at 158, 28 L.Ed. 274. Each of the other three cases cited by the Court, ante, p. 17, similarly involved acts which were prosecuted as violations of federal statutes. The acts in question were filing false election returns, United States v. Mosley, 238 U.S. 383, 35 S.Ct. 904, 59 L.Ed. 1355, alteration of ballots and false certification of votes, United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368, and stuffing the ballot box, United States v. Saylor, 322 U.S. 385, 64 S.Ct. 1101, 88 L.Ed. 1341. None of those cases has the slightest bearing on the present situation.

The Court gives scant attention, and that not on the merits, to Colegrove v. Green, 328 U.S. 549, 66 S.Ct. 1198, 90 L.Ed. 1432, which is directly in point; the Court there affirmed dismissal of a complaint alleging that 'by reason of subsequent changes in population the Congressional districts for the election of Representatives in the Congress created by the Illinois Laws of 1901 * *  * lacked compactness of territory and approximate equality of population.' Id., 328 U.S. at 550-551, 66 S.Ct. at 1198. Leaving to another day the question of what Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663, did ctually decide, it can hardly be maintained on the authority of Baker or anything else, that the Court does not today invalidate Mr. Justice Frankfurter's eminently correct statement in Colegrove that 'the Constitution has conferred upon Congress exclusive authority to secure fair representation by the States in the popular House *  *  *. If Congress failed in exercising its powers, whereby standards of fairness are offended, the remedy ultimately lies with the people.' 328 U.S., at 554, 66 S.Ct. at 1200, 90 L.Ed. 1432. The problem was described by Mr. Justice Frankfurther as '(a)n aspect of government from which the judiciary, in view of what is involved, has been excluded by the clear intention of the Constitution * *  * .' Ibid. Mr. Justice Frankfurter did not, of course, speak for a majority of the Court in Colegrove; but refusal for that reason to give the opinion precedential effect does not justify refusal to give appropriate attention to the views there expressed.

Today's decision has portents for our society and the Court itself which should be recognized. This is not a case in which the Court vindicates the kind of individual rights that are assured by the Due Process Clause of the Fourteenth Amendment, whose 'vague contours,' Rochin v. People of California, 342 U.S. 165, 170, 72 S.Ct. 205, 208, 96 L.Ed. 183, of course leave much room for constitutional developments necessitated by changing conditions in a dynamic society. Nor is this a case in which an emergent set of facts requires the Court to frame new principles to protect recognized constitutional rights. The claim for judicial relief in this case strikes at one of the fundamental doctrines of our system of government, the separation of powers. In upholding that claim, the Court attempts to effect reforms in a field which the Constitution, as plainly as can be, has committed exclusively to the political process.

This Court, no less than all other branches of the Government, is bound by the Constitution. The Constitution does not confer on the Court blanket authority to step into every situation where the political branch may be thought to have fallen short. The stability of this institution ultimately depends not only upon its being alert to keep the other branches of government within constitutional bounds but equally upon recognition of the limitations on the Court's own functions in the constitutional system.

What is done today saps the political process. The promise of judicial intervention in matters of this sort cannot but encourage popular inertia in efforts for political reform through the political process, with the inevitable result that the process is itself weakened. By yielding to the demand for a judicial remedy in this instance, the Court in my view does a disservice both to itself and to the broader values of our system of government.

Believing that the complaint fails to disclose a constitutional claim, I would affirm the judgment below dismissing the complaint.

APPENDIX TO OPINION OF MR. JUSTICE HARLAN.

Representatives #fn-s-s District  District  Districts

Alabama (8)...... .

Alaska (1)....... .

Delaware (1)..... .

Hawaii (2)....... .

Massachusetts (12). 478,962 376,336  102,

Mississippi (5). 608,441. 295,072 313,369 Missouri (10).. 506,854. 378,499 128,

Nevada (1)....... .

New Hampshire (2). 331,818 275,103  56,

New Mexico (2)... .

North Carolina (11). 491,461 277,861  213,

Pennsylvania (27). 553,154 303,026  250,

South Carolina (6). 531,555 302,235  229,

South Dakota (2). 497,669 182,845  314,

Vermont (1)...... .

West Virginia (5). 422,046 303,098  118,

Wyoming (1)...... .