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More Evidence For The Miers Tipping Point,
courtesy of a fascinating story by Byron York. The intro:
  Strategists working with the White House in support of the Supreme Court nomination of Harriet Miers are becoming increasingly demoralized and pessimistic about the nomination's prospects on Capitol Hill in the wake of Miers's meetings with several Republican and Democratic senators. On a conference call held this morning, they even discussed whether Miers should simply stop visiting with lawmakers, lest any further damage be done — and so that time spent in such get-acquainted sessions will not cut into Miers's intensive preparation for her confirmation hearing.
  And the conclusion:
  "In the early days, there were people on the call who tried to give facile defenses of Miers, and they were immediately shot down," says a fourth source. "And by the way, those defenses weren't as insulting as the White House line — no way would they have done the 'sexist, elitist' line."
  In summary, says the first source, "People have been looking for ways to support this. There are a lot of us who would like to find a reason to be encouraged. Every time I try to accommodate myself to this nomination, folks at the White House say idiotic things that piss me off, like that spin on Rove's part about her supposed deep involvement in judicial selection for three years, which is just not accurate."
  "Demoralization and pessimism?" the source continues. "That's been a constant. We're in the various stages of grief."
  Remember, this is from the group working with the White House in support of the nomination.
JayJ:
The second source mentioned in York's article states:

"Obviously the smart thing to do would be to withdraw the nomination and have a do-over as soon as possible. But the White House is so irrational that who knows? As of this morning, there is a sort of pig-headed resolve to press forward, cancel the meetings with senators if necessary, and bone up for the hearings."

Very accurate and devastating.
10.20.2005 7:05pm
A.S.:
In politics, you always bury the bad news by releasing it Friday afternoon, right? Tomorrow's Friday, right? God, let's hope they come to their senses tomorrow.
10.20.2005 7:11pm
M. Lederman (mail):
Just curious: If the White House really were to withdraw the Miers nomination (Tradesports currently down to 59.4% for confirmation, Orin ;-)), who is it that conservatives expect (NOT hope) the President would nominate in her stead? Assume for purposes of the question -- unless there's good reason to think otherwise -- that he would be in no mood to do his right wing any favors.

I also think it's fair to assume that he would, more than ever, insist on nominating a woman or minority.
10.20.2005 7:24pm
DC Lawyer (mail):
I can't really see Miers withdrawing before the hearings. That would be a real embarassment for her and for the White House. If she flunks the hearings, then the White House could quietly pull its support and ask her to step aside. But to do it beforehand doesn't make a lot of sense to me. I mean there are lots of reasons not to be excited about this nominee (on both sides of the political spectrum), but she hasn't disqualified herself ... yet.
10.20.2005 7:27pm
DC Lawyer (mail):
To answer Prof Lederman's question -- If I were President Bush, I'd pick Consuelo Callahan. The Right couldn't do anything about it, and neither could the Left.
10.20.2005 7:45pm
Buckland (mail):
With the plethora of "she's not qualified" messages coming from her detractors the bar of the hearings is being set pretty low. As long as she doesn't show up in a g-string and give Teddy Kennedy a lap dance she will have exceeded expectations.
10.20.2005 7:49pm
Unnamed Co-Conspirator:
Miers will likely get some bounce from the reaction to Cass Sunstein's obviously wrongheaded criticism of Miers' statement regarding "proportional representation." I'm assuming that once the conservative bloggers who jumped on the Casswagon without thinking figure out that Sunstein just blew it, there'll be some improvement in Miers' standing among conservatives as a group. Maybe the strategy of lowered expectations is paying off -- Miers, a complete unknown supposedly without any experience on Constitutional issues, goes head to head with one of the Dems' constitutional scholars, and wins handily.
10.20.2005 7:50pm
A.S.:
I think Mr. Lederman's assumption is incorrect. The President may very well be upset with the right-wing. But how would it solve any of his political problems to withdraw Miers and replace her with another nominee that the right-wing objects to? Just think, for example, if he replaced Miers with Alberto Gonzales. Would his political situation be any better than it is now? Not really - so why would he then have withdrawn Miers in the first place? The only reason to withdraw Miers now is to make nice-nice with the base; otherwise, he might as well wait to hear how the Senators decide to vote.
10.20.2005 8:19pm
Jared_:
Can someone explain to me how Sunstein was wrong? As a lay reader, I readily admit that my knowledge on the subject is limited, but clearly, the Constitution nowhere asserts any concept of proportional representation, and it is certainly not synonymous with or implicit in equal protection. So how is Sunstein's critism wrong?
10.20.2005 8:19pm
paul a'barge (mail):
Who said what? Oh, wait. Anonymous sources! Well, that just settles it, doesn't it. Things said by anonymous sources, people who don't have the balls to stand up in public and have their say, quoted by an NR sycophant, who in other circumstances would be flaying the same anonymous sources, linked to by some self-annointed legal elitist who wouldn't have a prayer in hell's chance of being appointed to any court in American worth citing.

How so you geek-bags sleep at night?
10.20.2005 8:31pm
George Turner (mail) (www):
Reynolds v. Sims, 1964, Jared, which essentially held that the Equal Protection Clause prohibits having one rural legislator representing a hundred ranchers, while another (and only one other) represent a hundred-thousand city folks. The basis of our democracy is electing a representation of the people, not ones of trees, cows, and mountainsides.

So to sum this up, yet again.

"There is no proportional representation requirement in the Equal Protection Clause," said Cass R. Sunstein, a constitutional law professor at the University of Chicago.


The consitutional law professor didn't bother reading Chief Justice Warren's opinion. The Supreme Court said there IS a proportional representation requirement in the Equal Protection Clause.

He and several other scholars said it appeared that Miers was confusing proportional representation — which typically deals with ethnic groups having members on elected bodies — with the one-man, one-vote Supreme Court ruling that requires, for example, legislative districts to have equal populations [which we like to call "proportional representation"].


Maybe he was confused.
10.20.2005 8:37pm
Buckland (mail):
Jared_ -- I'll try, but I'm not nearly as learned as some here.

What Miers (possibly) was referring to was the strict scrutiny that many southern states and cities were under from the DOJ from the 60's to the 90's.

Some (mostly but not exclusively southern) states got the big idea early in the last century that reapportioning districts, either congressional or council, didn't have to be done by the one man one vote rule. Alabama tried to apportion by county, giving a small, white counties the same representation as a large black one in the state house. Tennesee had a smilar scheme, and even states like IL did variations of the theme.

The Supreme Court took a dim view of such arrangements, starting with a case in 1963 [can't remember name...]. They said that representation had to be...Proportional -- districts needed to have approximately the same population. The Voting Rights Act codified a lot of the reforms in 1965. Many southern states (like TX) were slow to give up power and their voting procedures came under DOJ oversight for decades. Southerners couldn't change the paper in a polling place restroom without getting hit with VRA lawsuits (OK, not that bad, but nearly).

Dallas in the 1970's was cleaning up its act under DOJ supervision, helped or hindered (according to your point of view) by VRA lawsuits. This, I think, is where Miers comment about proportional representation under the VRA came from. It was a tense time for all southerners who had to deal with it. Most knew that the practices of the past were wrong, but weren't thrilled by the Washington helpfulness in the matter.

One other comment. Being on a large city council is the very type of engagement that people like John Roberts would avoid at all costs. He had been modeling for a SCOTUS nomination for 30 years. Getting involved was somthing as messy as a city council under DOJ supervision would have been something he would have steered clear of. Anything that can't be explained in 2 sentences can't be done if your single goal is a SCOTUS nomination. It's refreshing to see somebody who was working to make changes with no thought of how it would play in 25 years.
10.20.2005 8:42pm
jeffrichter (mail):
"which essentially held that the Equal Protection Clause prohibits having one rural legislator representing a hundred ranchers, while another (and only one other) represent a hundred-thousand city folks. The basis of our democracy is electing a representation of the people, not ones of trees, cows, and mountainsides."

I'm not a lawyer, but doesn't it strike anyone as strange that this decision taken to its logical conclusion essentially makes the US Senate "unconstitutional"? Why should [two] "rural legislators" (Wyoming) have the same voting power in Washington as [two] representing California?

If it's okay for the Federal government to organize a bicameral legislature on this basis, why is it not okay for a state to do the same?
10.20.2005 8:58pm
SKlein:
Mr. Turner--"proportional representation" does not mean what you think it means. A quick google search yields the following definition, which is close enough: "Proportional representation (PR). A broad term describing various electoral formulas in which parties win seats in a legislature in proportion to their share of the votes cast. PR can only be used in multimember districts." In other words, if the Dems get 45% of the vote and the Reps 55%, they split seats in proportion to their share, as opposed to a winner takes all system.
10.20.2005 9:03pm
Steve:
Because the Senate is an exception that's explicitly included in the Constitution.
10.20.2005 9:03pm
Mr. Mandias (mail) (www):
George Turner,
When Miers talked about proportional representation, she did it with reference to minority-groups. She didn't have in mind one-man/one-vote, she had in mind 10% of the legislature being black if 10% of the populace was, etc.
10.20.2005 9:05pm
Craig Oren (mail):
Jeff,

Justice Harlan asked the same question in a powerful dissent. Senator Everett Dirksen sponsored a constitutional amendment to allow one house of a state legislature to be on a non-population basis. Both lost.

In fact, Jeff, here's the best part: there actually is a law professor (I think Lynn Baker at Texas) who has argued that the Senate *is* unconstitutional!

Actually, I think what Miers is talking about is the switch from election of city councils at large to election by district. In many areas, minorities do worse under the district system, and so DOJ strongly encouraged a switch to district. I believe Miers stopped being a city council woman when her city made the switch.
10.20.2005 9:06pm
Steve:
There are two separate concepts that could be termed "proportionate representation" in the voting context:

1) The Equal Protection Clause, pursuant to Reynolds v. Sims and related cases, provides that legislative districts on the federal and state levels must include the same number of people as their neighbors;

2) Section 2 of the Voting Rights Act of 1965, as interpreted (not without some controversy) by the courts, requires a certain proportionate relationship between the population of minority groups and their representation in the legislative body.

Sunstein pointed out that 2) has nothing to do with the Equal Protection Clause; it is a statutory matter. Miers' defenders are arguing that she may have been referring to 1) instead.

Except Miers' quote explicitly SAYS she is referring to Section 2 of the Voting Rights Act. So the attempt to argue that she was really talking about equal protection cases of type 1) is inoperative, and her defenders have no case.
10.20.2005 9:20pm
Jared_:
I thank you for your response, Mr. Turner, but am still confused. I see Reynolds v. Sims (and Baker v. Carr) as setting forth a one man, one vote principle, and I suppose you could call that a number of different things, but I never considered "proportional representation" to be one of them. That, to me, has always meant something else entirely; either carving out designated minority seats in a sort of quota system or filling a parliament based upon party vote totals, neither of which is present in the American system.

Again, I'm definitely open to whatever information anyone has on this, but I can't figure out how reapportionment becomes proportional representation.
10.20.2005 9:24pm
A Guest Who Enjoys This Site:
jeffrichter: The 2 senator rule was designed to ensure that larger states, in terms of population, did not have proportionally MORE power than smaller states. As an example, based on 2004 estimates, California, Texas, New York, Florida, Pennsylvania, Illinois, Michigan, New Jersey, North Carolina, and Georgia (10 states or 20 % of the total number of states) would form a 53.25% majority. [Incidently, these are the states with populations exceeding 8 million.] That means that even if the remaining 80% (40) of the states managed to form a cohesive voting block, they still could not form a simple majority.

In a very specific sense, the House of Representatives was established to create 'regional' representation from within the individual states. This way, people living in the Valley of the Three Forks region of Tennessee had a voice as well as those from Memphis or Nashville. The Senate was established to create equality of 'state' representation so that a 'small number' of states could not exercise undue power over 'small states.'

In this way, the Senate was created as a 'check' against the power of large (heavily populated) states in the House; with the House being a 'check' on the ability of small states in the Senate to exert undue authority over the interests of the majority.

This is why issues such as term limits come up periodically. The Senate has established rules which somewhat mitigate the House's 'checking power' in that "seniority" becomes a path by which a small state can exercise disproportional power within the Senate itself. Ted Kennedy is the poster child for this particular argument.

That's why it is in the Constitution as an 'explicit exception.' As for your other question - If it's okay for the Federal government to organize a bicameral legislature on this basis, why is it not okay for a state to do the same? - 49 of the states (I think Nebraska is the exception) DO have bicameral legislatures. Most of these state-level, bicameral legislatures are based upon the federal model of representatives and senators.
10.20.2005 9:54pm
JG:
Jared, you're not confused. As others have pointed out, "proportional representation" is a term of art, especially within the voting rights and political science communities. It has a specific meaning, and its advocates, however tepid their support, tend to get run out of D.C. (see, e.g., Lani Guinier). If Ms. Miers was referring to OPOV, then she will have to get much more precise before she can meaningfully adjudicate constitutional and statutory questions at the SCOTUS level.
10.20.2005 9:54pm
chris (mail):
Nowhere in the Constitution does it say one man one vote or anything else that would forbid a state from having a state senate with, say, two senators from each county, even if counties have vastly different populations. This was another example of the Supreme Court (in this case the Warren Court) making stuff up from whole cloth. It simply can't be the case that the Constitution forbids what it explicitly creates.
10.20.2005 10:07pm
A Guest Who Enjoys This Site:
Craig Oren:

If I remember correctly, Baker's contentions would, in effect, require an 'unconstitional' overreaching of the judiciary's power; i.e., the Senate must be declared unconstitutional as a matter of judicial review. At the very least, if not an 'unconstitutional' overreach, it would be a decidedly un-Federalist Papers interpretation of the power imbued to the judiciary.

In short, wasn't the argument that the political safeguards as espoused by the Founders, i.e., the rationale behind the establishment of a tripartite government, were not sufficiently reliable to operate without judicial review. Thus, in a practical sense, Baker's argument is that the Senate is not constitutional without judicial oversight. Which, on its face, would seem to be an argument in favor of the very political safeguards espoused by the Founders.

In short, the argument that the Senate was not 'constitutional' was/is, in essence, an argument for an increased power/influence of the judiciary?

Does that about cover it or did I miss something in the logic?
10.20.2005 10:22pm
Adam (mail) (www):
Chris, except for the Equal Protection clause, and, perhaps, the Guaranty Clause: "The United States shall guarantee to every State in this Union a Republican Form of Government."
10.20.2005 10:26pm
Jason Sorens (www):
AGWETS says: "As for your other question - If it's okay for the Federal government to organize a bicameral legislature on this basis, why is it not okay for a state to do the same? - 49 of the states (I think Nebraska is the exception) DO have bicameral legislatures. Most of these state-level, bicameral legislatures are based upon the federal model of representatives and senators."


Actually, because of Reynolds v Sims, states are not allowed to pattern their senates after the U.S. Senate (for example, representing counties equally). State senates are generally just fewer-member, larger-district versions of state houses, a fact that makes them nearly superfluous in my view.

10.20.2005 10:32pm
Cornellian (mail):
No the Senate isn't unconstitutional. Different provisions of the Constitution don't overrule each other. Since the Constitution explicitly provides for 2 senators per state, it's obviously intended as an exception to equal protection, at least to the extent that equal protection implies representation by population.

I'm not a lawyer, but doesn't it strike anyone as strange that this decision taken to its logical conclusion essentially makes the US Senate "unconstitutional"? Why should [two] "rural legislators" (Wyoming) have the same voting power in Washington as [two] representing California?
10.20.2005 10:52pm
Cornellian (mail):
Are you saying that the Constitution "explicitly creates" state legislatures of any kind? Or are you saying that because the Constitution explicitly provides for 2 US senators per state, that impliedly a state could set up its own senate the same way? I see nothing in the Constitution that explictly provides for that extrapolation either.

Are you saying there would be no equal protection problem if a state were, for example, to have 1 senate seat from a mostly black population city with 80% of the state population and the other 99 seats from the various rural (mostly white) counties that make up the other 20% of the state's population?

Nowhere in the Constitution does it say one man one vote or anything else that would forbid a state from having a state senate with, say, two senators from each county, even if counties have vastly different populations. This was another example of the Supreme Court (in this case the Warren Court) making stuff up from whole cloth. It simply can't be the case that the Constitution forbids what it explicitly creates.
10.20.2005 10:56pm
A Guest Who Enjoys This Site:
Jason: I take responsibility for not making the intent of my statement clear. I was not trying to indicate that state senates modeled their rules or organizational structure after the Federal Model. I was simply attempting to indicate that bicameral legislatures tended to have a "HOUSE" and a "SENATE;" or synonmous terms. I apologize for my lack of clarity.

As for Reynolds v. Simms, I find Justice Harlan's statement interesting in light of both the controversy surrounding Miers and the largely ad hominem discussion this week related to homosexual marriage on the Volokh Conspiracy...


Finally, these decisions give support to a current mistaken view of the Constitution and the constitutional function of this Court. This view, in a nutshell, is that every major social ill in this country can find its cure in some constitutional "principle," and that this Court should "take the lead" in promoting reform when other branches of government fail to act. The Constitution is [377 U.S. 533, 625] not a panacea for every blot upon the public welfare, nor should this Court, ordained as a judicial body, be thought of as a general haven for reform movements. The Constitution is an instrument of government, fundamental to which is the premise that in a diffusion of governmental authority lies the greatest promise that this Nation will realize liberty for all its citizens. This Court, limited in function in accordance with that premise, does not serve its high purpose when it exceeds its authority, even to satisfy justified impatience with the slow workings of the political process. For when, in the name of constitutional interpretation, the Court adds something to the Constitution that was deliberately excluded from it, the Court in reality substitutes its view of what should be so for the amending process.
10.20.2005 10:57pm
Syd Henderson (mail):
Adam (mail) (www):
Chris, except for the Equal Protection clause, and, perhaps, the Guaranty Clause: "The United States shall guarantee to every State in this Union a Republican Form of Government."


With the added wrinkle that although equal protection under the 14th amendment can be used by the Supreme Court in ensuring equal representation in state houses, it cannot do so for the US Senate because not only does the constitution allocate two senators per state, Article V of the Constitution forbids amending that part of the constitution to remove the equal representation. (I think if we wanted to, we could amend the Constitution to increase the representation to 3 senators per state as long as the repesentation stays equal.)
10.20.2005 11:06pm
George Turner (mail) (www):
JG, if "proportional representation" is "a term of art" regarding race based representation, why did Madison, Adams, and Jay fling it around all through the Federalist Papers, Federalist 62, for example, although there are many others.

The equality of representation in the Senate is another point, which, being evidently the result of compromise between the opposite pretensions of the large and the small States, does not call for much discussion. If indeed it be right, that among a people thoroughly incorporated into one nation, every district ought to have a PROPORTIONAL share in the government, and that among independent and sovereign States, bound together by a simple league, the parties, however unequal in size, ought to have an EQUAL share in the common councils, it does not appear to be without some reason that in a compound republic, partaking both of the national and federal character, the government ought to be founded on a mixture of the principles of proportional and equal representation.


sklein, when you look up "proportional representation", you might find anything from the meanings of the Founding Fathers, the typical European parliamentary meanings, or the Lani Guinier racial systems. What Miers was dealing with was the US version that the 5th Circuit Court of Appeals would use to beat the Dallas City Council over the head.

What Dallas was dealing with were violations of the principle of proportional representation, violations that had racial intent, which is why the redistricting ended up under the supervision of the 5th Circuit. This issues were complex, and there were powerful forces at work, debating back and forth.

Here's some Dallas Morning News articles on the subject, from 1991. Thanks goes to Practical Progressivist, who is apparently rooting through the back issues of the Dallas papers. Another one is here.
10.20.2005 11:29pm
Joe S (mail):
The Washington Times reports "Miers to end her visits with senators"
10.20.2005 11:31pm
bains (mail):

Remember, this is from the group working with the White House in support of the nomination.


Remember that these unsourced quotes are from a group actively seeking to quash this nomination.

NRO has learned well from the MSM and Dems of late...
10.20.2005 11:34pm
JG:
JG, if "proportional representation" is "a term of art" regarding race based representation, why did Madison, Adams, and Jay fling it around all through the Federalist Papers ?

George, because it did not mean then what it means now. The idea of proportional representation as it is presently understood in political theory did not exist in the 18th century. Just to be clear, I wasn't suggesting that Ms. Miers was wrong or confused -- I don't know this and express no opinion on it -- only that she needs to be much more precise with her language.
10.20.2005 11:38pm
JG:
Also, I didn't suggest that proportional representation meant "race"-based representation. It could be based on any grouping of voters.
10.20.2005 11:41pm
JG:
Also, I think you mean Madison, Hamilton, and Jay.
10.20.2005 11:44pm
SimonD (www):
No the Senate isn't unconstitutional. Different provisions of the Constitution don't overrule each other. Since the Constitution explicitly provides for 2 senators per state, it's obviously intended as an exception to equal protection, at least to the extent that equal protection implies representation by population.
Where might one find the equal protection clause that the organization of the Senate along its current lines would violate? The equal protection clause in the fourteenth amendment does not apply to the Federal Government ("nor shall any state...deny to any person within its jurisdiction the equal protection of the laws").

On the other hand, if it didn't - isn't it theorized by a sizable corpus of work that the eleventh amendment prohibits suits made by an individual against their own state involving articles of the bill of rights, but does not prohibit suits based on subsequent amendments, based on the logic that where two amendments are in conflict, the more recent amendment implicitly repeals those sections of the more venerable with which it conflicts? I don't necessarily buy into these (I'm still determing my opinion on the eleventh).
10.20.2005 11:49pm
SimonD (www):
Not, incidentally, that I'm conceding in the post above that Baker or Reynolds were correctly decided, which I think it clear they weren't. There is a clear and obvious rational basis for large and diverse polities maintaining both a populus-representing and a geography-representing house in a bicameral system. I don't read the fourteenth amendment as securing from the people of the United States the ability to copy the genius of the Great Compromise into their state constitutions.
10.20.2005 11:52pm
AF -- another one:
Volokh conspiracy is great because it calls people when they make snap judgments not supported by evidence or reason, and quiets the echo chamber of non-reason that we often see when public debate becomes contentious. It is very sad to see the Conspirators become overwhelmed with repeating and highlighting speculation and opinion, a la talking heads on cable news, as this Miers nomination has gone forward. None of the complaints over the past week or so amount to anything of substance, just people picking through evidence looking to highlight the story line of the day. Of course the White House would be demoralized in the face of this. Time for someone here to cut through the B.S. and provide a framework to think about this that isn't completely inane and emotive. Kerr is usually good at this, but he is failing miserably here.
10.20.2005 11:58pm
jeremy (mail) (www):
"Thou seek'st the greatness that will overwhelm thee."

That's Henry IV to his son. I think it fits Miers. What personal attorney trades on a relationship with a client for this sort of nomination? And then exempts herself from the same vetting process all others accepted?

She's now causing a great deal of trouble for her client as a result. But I suppose he's now her former client.
10.21.2005 12:06am
SimonD (www):
AF-
None of the complaints over the past week or so amount to anything of substance
In fairness, there is nothing available in the public domain that "amount[s] to anything of substance", so the material avaiable for discussion is limited. You works with what you gots.
10.21.2005 12:10am
SimonD (www):
Uh, I mean, there is nothing in the public domain about Miers that "amount[s] to anything of substance."
10.21.2005 12:11am
Katherine:
"The Senate has established rules which somewhat mitigate the House's 'checking power' in that "seniority" becomes a path by which a small state can exercise disproportional power within the Senate itself. Ted Kennedy is the poster child for this particular argument."

No he isn't. Massachusetts is the 13th largest state in terms of population. Also, the large states are underrepresented in the House too--California has 70+ times the population of Wyoming, but since every state gets at least one rep and they cap the size....
10.21.2005 12:23am
jeffrichter (mail):
Cornellian:
Are you saying that the Constitution "explicitly creates" state legislatures of any kind? Or are you saying that because the Constitution explicitly provides for 2 US senators per state, that impliedly a state could set up its own senate the same way? I see nothing in the Constitution that explictly provides for that extrapolation either.

There is nothing in the Constitution that "explicitly" prevents it either (at least until a Supreme Court ruling 100 years after the 14th Amendment was adopted). Up until that point many states had EXACTLY that type of arrangement. But the "one man one vote" pretty much makes a state "senate" and "house" redundant, don't you think?

Are you saying there would be no equal protection problem if a state were, for example, to have 1 senate seat from a mostly black population city with 80% of the state population and the other 99 seats from the various rural (mostly white) counties that make up the other 20% of the state's population?

I am saying that it seems to me there would be no more of an equal proetction problem than there is in (to choose at random) Wyoming or Utah, which are pretty much predominantly "white" states having the same representation in the US Senate as (hypothetically let's pretend that Washington DC attained statehood and received US Senate representation with its predominantly black population.)
10.21.2005 12:28am
SimonD (www):
but since every state gets at least one rep and they cap the size....
Which they have to. The larger a representative body becomes, the more unworkable it becomes in practise. Could the House gain a hundred members and still function? Maybe, maybe not; but I don't think we would gain anything substantial in terms of representation, and I would even argue that the smaller states should have a minimum of TWO seats in the House.
10.21.2005 12:51am
Cornellian (mail):
You find it in the 5th amendment guarantee of due process, which incorporates the 14th amendment guarantee of equal protection, or so says SCOTUS.

The 11th amendment doesn't really enter the picture, since that would only determine who could bring suit, not whether the suit had merit.

Where might one find the equal protection clause that the organization of the Senate along its current lines would violate? The equal protection clause in the fourteenth amendment does not apply to the Federal Government ("nor shall any state...deny to any person within its jurisdiction the equal protection of the laws").

On the other hand, if it didn't - isn't it theorized by a sizable corpus of work that the eleventh amendment prohibits suits made by an individual against their own state involving articles of the bill of rights, but does not prohibit suits based on subsequent amendments, based on the logic that where two amendments are in conflict, the more recent amendment implicitly repeals those sections of the more venerable with which it conflicts? I don't necessarily buy into these (I'm still determing my opinion on the eleventh).
10.21.2005 2:30am
Cornellian (mail):
Well then I'm not seeing your logic. The 14th Amendment even on a narrow reading prohibits discrimination based on race. Rigging a state senate to ensure a majority black population is perpetually restricted to a tiny minority of the seats would certainly qualify as racial discrimination. You seem to be saying that would be ok because the Constitution provides for a federal senate with equal representation for each state regardless of population. Or in other words, since the Constitution explicitly provides for a federal senate exemption, that somehow state senates must be exempt as well. Surely the reverse is the proper inference if any inference is to be drawn?

I am saying that it seems to me there would be no more of an equal proetction problem than there is in (to choose at random) Wyoming or Utah, which are pretty much predominantly "white" states having the same representation in the US Senate as (hypothetically let's pretend that Washington DC attained statehood and received US Senate representation with its predominantly black population.)
10.21.2005 2:35am
A Guest Who Enjoys This Site:
Katherine: True power in the Senate is directly tied to seniority, not population size of a state. As of June 2005, Kennedy is the 2nd longest serving senator. Byrd, from West Virginia, is the longest serving. Third would be Inouye from Hawaii. Fourth would be Stevens from Alaska.

So, let's see. Ranked by population as of 2000 Census, the longest serving senators, in order from 1st-4th, would come from:

West Virginia - 37th largest
Massachusetts - 13th largest
Hawaii - 42nd largest
Alaska - 48th largest

If we total the 2000 populations for these states and divide by 2 for the number of senators from each of these states, we come up with: 4,997,955 individuals. Now, the total population for the U.S. in 2000 was 281,421,906. This means, roughly speaking, that these 4 individuals represent approximately 1.78% of the total U.S. population.

Even if we recognize that Kennedy is the only one of the four which come from the top 14 states in terms of size, we must also recognize that this doesn't say much when the actual population numbers are considered.

Rank State Population
1 California 33,871,648
2 Texas 20,851,820
3 New York 18,976,457
4 Florida 15,982,378
5 Illinois 12,419,293
6 Pennsylvania 12,281,054
7 Ohio 11,353,140
8 Michigan 9,938,444
9 New Jersey 8,414,350
10 Georgia 8,186,453
11 North Carolina 8,049,313
12 Virginia 7,078,515
13 Massachusetts 6,349,097

This means that 59.5% of the U.S. population live in the 12 states ranked larger than Massachusetts. Massachusetts has approximately 18.75% of California's population; or not even the equivalent of 1/5 of the most populous state's. Therefore, ranking is not necessarily the definition of 'small state.' And as the next the 37th, 42nd, and 48th largest states have considerably less population than Massachusetts, I'd humbly suggest that there would be little debate of their being defined as 'small' in terms of population.


The Senate uses committees (as well as their subcommittees) for a variety of purposes, including the review of bills and the oversight of the executive branch. The appointment of committee members is formally made by the whole Senate, but the choice of members is actually made by the political parties. Generally, each party honors the preferences of individual senators, giving priority on the basis of seniority. Each party is allocated seats on committees in proportion to its overall strength. ( http://en.wikipedia.org/wiki/United_States_Senate )


Second only to the consideration of majority party, committee membership/leadership is a function of the preferences of senators based on seniority. The four most senior senators represent only 1.78% of the country's total population. Three of these four senators come from, based on population size, among the 14 smallest states. Three of the four senators are Democrats; i.e., from the minority party.

Byrd, Stevens, and Inouye are on Appropriations; with Byrd serving as Ranking Member.

Kennedy and Byrd are on Armed Services.

Byrd is on Budget.

Stevens, Byrd, and Inouye are on Rules and Administration.

Inouye is on Printing and Indian Affairs.

Stevens and Inouye are on Commerce, Science, and Transportation as Chairman and Ranking Member respectively.

Kennedy is on Economic; is Ranking Member on Health, Education, Labor, and Pensions; and is on Judiciary.

Stevens is Vice Chairman on Library and serves on Homeland Security and Government Affairs.

So, the ranking member on Appropriations is from the 37th largest state. The ranking member on Health, Education, Labor, and Pensions is from the 13th largest state. The Chairmand and Ranking Member of Commerce, Science, and Transportation come from the 48th and 42nd largest states respectively...

Could you please explain to me again how seniority in the Senate does NOT constitute a mechanism by which smaller states may wield disproportionate power within the Senate?

As for your contention of underrepresentation in the House. At least there is a proportionality to the representation. There are a total of 435 members in the House. California currently has 52 seats; or, 11.95% of the total. As of 2000, California had 12.04% of the U.S. population. On the other hand, to use your example, Wyoming has one seat (0.23% of those available) with a total of 493,782 individuals, or 0.18% of the total U.S. population. So, with a modicum of rounding, California has 12% of the total population and 12% of the seats in the House. Wyoming has 0.2% of the population and 0.2% of the House seats.

Is that not proportional representation? If California has 60 times the population of Wyoming and 60 times the representation in the House, how is the 'larger' state underrepresented?
10.21.2005 2:56am
Misha Tseytlin (mail):
The problem of the principle of proportional representation conflict with the Senate is not a new one. James Madison, James Wilson and Alexander Hamilton all pointed out that 2 senators per state was unjust at the constitutional convention (a fact most people who venerate these founders do not know). The shifting rationales as to why 2 Senators per state makes sense make it difficult to actually refute them. I have written a law review note on this topic, which is upcoming in Georgetown Law Journal (sometime in February, I think). If you are interested in this, drop me and email and I will send you a copy of my note.
10.21.2005 9:55am
SimonD (www):
Cornellian-
You find it in the 5th amendment guarantee of due process, which incorporates the 14th amendment guarantee of equal protection, or so says SCOTUS.
SCOTUS says many things, some of which are accurate and some of which aren't. The idea that any part of the fifth amendment incorporates an amendment whose framers were yet but a twinkle in their fathers' eyes is facially absurd. I presume you're referencing Bolling v. Sharpe, 347 U.S. 497 (1954). The opinion of that court in that case is so absurd (holding that "[t]he Fifth Amendment, which is applicable in the District of Columbia, does not contain an equal protection clause," but that is no barier since "the concepts of equal protection and due process, both stemming from our American ideal of fairness, are not mutually exclusive", and therefore, the court is at liberty to read an equal protection clause into the fifth amendment) that the only possible reason a person cold have for supporting the ruling is the result.
10.21.2005 10:42am
SimonD (www):
Rigging a state senate to ensure a majority black population is perpetually restricted to a tiny minority of the seats would certainly qualify as racial discrimination.
Evaluate it under rational basis. If the intention is to discriminate against "discrete and insular minorities" and the like, then that raises an equal protection challenge. But there are valid reasons for geographic representation. Consider Illinois. People who live in Chicago are going to have no - zero, none - understanding of what people in (mainly rural) southern Illinois need. They both have to co-exist in the same state and compete for the same budget. This is a microcosm of the same problem that the Great Compromise has, in practical effect, solved: how do you balance the interests of, say, rural Wyoming and urban San Francisco? Answer: a bicameral legislature with different patterns of representation. This does not, per se, violate equal protection, although if the organizing intent was to disenfranchise black voters, I could see it raising questions.
10.21.2005 10:51am
Cornellian (mail):
Arguable, certainly, but "facially absurd?" I don't agree. If one assumes that the 5th Amendment means something, and one is trying to determine what that "something" is, it does not strike me as facially absurd to consider other provisions of the Constitution in making that determination. The logic isn't that the Framers the 5th Amendment had the text of the 14th Amendment in mind (which obviously would be impossible), but rather the 14th Amendment reflects values which are illustrative of the content of the 5th Amendment - hardly an absurd proposition, and not even necessarily inconsistent with original understanding, especially if one bears in mind that due process is really privileges and immunities in disguise.

Prof. Glen Reynolds actually has a pretty good article out about the general subject of what original understanding means in the context of what Robert Bork thinks it means (he says Bork's wrong). The link's at Instapundit.



SCOTUS says many things, some of which are accurate and some of which aren't. The idea that any part of the fifth amendment incorporates an amendment whose framers were yet but a twinkle in their fathers' eyes is facially absurd. I presume you're referencing Bolling v. Sharpe, 347 U.S. 497 (1954). The opinion of that court in that case is so absurd (holding that "[t]he Fifth Amendment, which is applicable in the District of Columbia, does not contain an equal protection clause," but that is no barier since "the concepts of equal protection and due process, both stemming from our American ideal of fairness, are not mutually exclusive", and therefore, the court is at liberty to read an equal protection clause into the fifth amendment) that the only possible reason a person cold have for supporting the ruling is the result.
10.21.2005 11:33am
Cornellian (mail):
I should make one further comment on state senates, which is this: assuming senate districts must have equal populations the way house districts do, why bother having a senate? What does a state senate give you that the state house doesn't give you, other than more jobs for politicians (not a good thing in my book).

Doesn't one of the states have a unicameral legislature? (Arizona? Montana?) Has anyone noticed any particular problems arising from that?
10.21.2005 11:36am
Cornellian (mail):
You evaluate an equal protection based racial discrimination claim on a rational basis test? Not strict scrutiny?

Rigging a state senate to ensure a majority black population is perpetually restricted to a tiny minority of the seats would certainly qualify as racial discrimination.
Evaluate it under rational basis. If the intention is to discriminate against "discrete and insular minorities" and the like, then that raises an equal protection challenge.
10.21.2005 11:38am
SimonD (www):
Cornellian-
The problem I have with that argument is, if the principles of equal protection and prileges &immunities are inextricably a part of "due process", why doesn't the fourteenth amendment (and, for that matter, Article IV §2) simply talk about due process, as does the fifth? The only reasonable inference to draw from their separate statement is that they represent different propositions.

My concerns about this kind of approach are not confined to merely the fifth amendment, they are related to a more general scepticism, and this is the reason I brought up the eleventh amendment before - I noted at Concurring Opinions yesterday that, at first blush, eleventh amendment jurisprudence was incoherent because:

"I do not agree that doctrinal discussion can overrule the explicit text of the Constitution or its amendments. It can inform - but not supersede. I have no objection to doctrine filling the gaps in the Constitution; it is, after all, 'a constitution that we are expounding.' I have no objection, therefore, and for example, to Weeks v. U.S., (or even Mapp v. Ohio), where the Court created binding doctrine which is endemic to giving teeth to the safeguards of the Constitution. Nor do I have any objection to the use of historical practise and structural inference to make clear constitutional provisions that are unclear. But what I am unwilling to do is to acknowledge the theory that says the Constitution is no more than a set of abstract principles, from which the text is but a distraction...

"If the terms of the Eleventh Amendment were unclear, I might see wisdom in the inquiry into the small-c constitution and the theoretical underpinnings of the amendment . . . to extrapolate a broader meaning giving effect to the amendment. But the Eleventh Amendment is not unclear." (Internal citations removed)


This whole idea that the terms of the amendment should be interpreted so broadly as to become divorced from the text seems alien to me. The fifth amendment says certain things and does not say other things; even if you don't buy into expressio unius est exclusio alterius, surely it seems far from unreasonable to assume that, if the framers meant to include an equal protection clause in the fifth amendment, they would have done so? Furthermore, even if you don't buy this, as with the eleventh amendment, is it really proper to resort to speculation about the original intent of the framers simply because we find ourselves uncomfortable with the limitations of the words they chose? Isn't this an implicit repudiation of textualism in favor of original intent, a theory I had thought dead and buried by originalists and living documentarians alike?

I am not saying that Bolling was necessarily wrongly-decided, any more so than Brown was. I also noted yesterday, in a parallel post to the one quoted above, that in my view, a coherent judicial theory must:

"appl[y] not only to the Constitution but to statutory interpretation as well, and [should] incorporate stare decisis in some way which coherently explains what the value of precedent is, and when it should be overruled."


In my view, any case for which a reasonable originalist case can be made - i.e., one might concur in the judgement only, but concur one would - can easily be sustained under stare decisis, even if the grounds on which they were decided were shaky. This applies certainly to Brown, and I have read decent arguments that Bolling also falls into this category.

Regarding Glenn and Robert Bork - I have things I disagree with Bork, Scalia and Thomas on, so what's one more? ;) I'll check Glenn's essay out. :)
10.21.2005 12:47pm
SimonD (www):
Doesn't one of the states have a unicameral legislature?
Nebraska. And really, post-Reynolds, there really is no purpose for the other 49. Of course, I would prefer that Reynolds be overruled (or at least, ignored), rather than drastically changing the constitutional arrangements of every state but one...


You evaluate an equal protection based racial discrimination claim on a rational basis test? Not strict scrutiny?
I will, if there is a reasonable state objective that is served by the policy or institution which is not intended to be discriminatory. I think the balancing of diverse local needs against populism in a bicameral legislature is an entirely valid objective of the people in so configuring their constitutional arrangements, and so I would evaluate such a claim under rational basis. Surely you don't mean to hold that every policy which may or may not result in discrimination should be per se an equal protection violation?
10.21.2005 12:52pm
Misha Tseytlin (mail):
"I should make one further comment on state senates, which is this: assuming senate districts must have equal populations the way house districts do, why bother having a senate? What does a state senate give you that the state house doesn't give you, other than more jobs for politicians (not a good thing in my book). "

Well, if you ask Madison, Hamilton ect. they woudl explain to you that the main functions of a Senate are (1) to create a more deliberate branch- with longer terms, and more discussion (6 year terms at the national level); (2) divide the legislative department into two parts, thus making ANY legislation more difficult to pass. The two senators per state was merely a power grab by small state delegates at the convention, a power grab that the intellectual fathers of our constituional system denounced at such. it is a shame to see these post-hoc rationalization made to justify this unprincipled compromise that had to be made to get the Constitution through.
10.21.2005 2:56pm
SimonD (www):
Misha,
I think your last post contains several historical inaccuracies, but I think all those are less important than your (in my view, skewed) contempt for the ideas that underpin the constitution. Was it a compromise? Yes, but I don't think that detracts from it all. Madison's original Virginia plan was by far the inferior of what emerged from the Convention, and I think there is remarkably little wrong with the structural provisions of the Constitution.
10.21.2005 3:56pm
Misha Tseytlin (mail):
Simon, I charge you to point out my "inaccuracies." Unless, of course, you mean historical events that you find displeasing to your worship-like account of the Constitution. it is precisely because I take the project of men like Hadison, Hamilton ect. seriously that I critize two senators per state. Also, what is this "basic" idea behind the Constitution that I am missing? I would guess its probably what Hamilton called a quest "for power, not liberty" when describing the attempt to make 2 Senators per state. Or perhaps Madison when he said that the small states' plan would undermine the "proper foundation of government". If you continue to view compromises of necessity as if they actually were brilliant principled decisions that have "remarkably little wrong with them"- you do not understand what motivated the founders in creating a NEW government, that broke away from the dogmas of the past.

2 Senators per state was just a compromise like the 3/5th clause. I understand it was needed to get the Constitution through, but it certainly need not be retained.
10.24.2005 3:55pm