1 HARLAN, J., dissenting. government ought to contain in itself the means of its own preservation." 40 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 Fœderal 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 congressional 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 40 Id., at 398. 41 Id., at 398-399. HARLAN, J., dissenting. 376 U.S. 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. IV. 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." 42 The requirement was later dropped, and reinstated." In 1872, Congress required that Representatives "be elected by districts composed of contiguous territory, and containing as 43 42 Act of June 25, 1842, § 2, 5 Stat. 491. 1 HARLAN, J., dissenting. nearly as practicable an equal number of inhabitants, no one district electing more than one Representative.” 45 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.48 47 The legislative history of the 1929 Act is carefully reviewed in Wood v. Broom, 287 U. S. 1. 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. Although there is little discussion 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,50 45 Act of Feb. 2, 1872, § 2, 17 Stat. 28. 46 Act of Feb. 25, 1882, § 3, 22 Stat. 5, 6; Act of Feb. 7, 1891, § 3, 26 Stat. 735; Act of Jan. 16, 1901, § 3, 31 Stat. 733, 734; Act of Aug. 8, 1911, § 3, 37 Stat. 13, 14. 47 Act of June 18, 1929, 46 Stat. 21. 48 Act of Apr. 25, 1940, 54 Stat. 162; Act of Nov. 15, 1941, 55 Stat. 761. H. R. 11725, 70th Cong., 1st Sess., introduced on Mar. 3, 1928, 69 Cong. Rec. 4054. 50 70 Cong. Rec. 1499, T584, 1602, 1604. HARLAN, J., dissenting. 376 U.S. The leaves no doubt that the omission was deliberate. 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.” 51 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.52 Bills which would have imposed on the States a requirement of equally or nearly equally populated districts were regularly introduced in the House.53 None of them became law. 51 70 Cong. Rec. 1499 (remarks of Mr. Dickinson). The Congressional Record reports that this statement was followed by applause. At another point in the debates, Representative Lozier stated that Congress lacked "power to determine in what manner the several States exercise their sovereign rights in selecting their Representatives in Congress . . . 70 Cong. Rec. 1496. See also the remarks of Mr. Graham. Ibid. 52 See, e. g., 86 Cong. Rec. 4368 (remarks of Mr. McLeod), 4371 Cong. Rec. 1081 (remarks of Mr. 53 H. R. 4820, 76th Cong., 1st Sess.; H. R. 5099, 76th Cong., 1st Sess.; H. R. 2648, 82d Cong., 1st Sess.; H. R. 6428, 83d Cong., 1st Sess.; H. R. 111, 85th Cong., 1st Sess.; H. R. 814, 85th Cong., 1st Sess.; H. R. 8266, 86th Cong., 1st Sess.; H. R. 73, 86th Cong., 1st Sess.; H. R. 575, 86th Cong., 1st Sess.; H. R. 841; 87th Cong., 1st Sess. (remarks of Mr. Rankin), 4369 (remarks of Mr. McLeod); 87 Moser). Typical of recent proposed legislation is H. R. 841, 87th Cong., 1st Sess., which amends 2 U. S. C. § 2a to provide: "(c) Each State entitled to more than one Representative in Congress under the apportionment provided in subsection (a) of this section, shall establish for each Representative a district composed of contiguous and compact territory, and the number of inhabitants contained within any district so established shall not vary more than 10 per centum from the number obtained by dividing the total population of such States, as established in the last decennial 1 HARLAN, J., dissenting. 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. ས. The extent to which the Court departs 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, 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 54 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 pro census, by the number of Representatives apportioned to such State under the provisions of subsection (a) of this section. "(d) Any Representative elected to the Congress from a district which does not conform to the requirements set forth in subsection (c) of this section shall be denied his seat in the House of Representatives and the Clerk of the House shall refuse his credentials." Similar bills introduced in the current Congress are H. R. 1128, H. R. 2836, H. R. 4340, and H. R. 7343, 88th Cong., 1st Sess. 54 R. S. § 5508; R. S. § 5520. |