One man one vote

Thu Aug 3 15:36:04 PDT 2006

The advantage to rural sparsely populated districts means that we have a
political bias toward those people who can not get along with their
fellow man and flee human contact.  Those people who love the
stimulation of the large city -- the art, the conversation,
opportunities -- are disadvantaged.    If we are going to overweight one
group, let us pick a block in Brooklyn, then Manhattan, at random, and
give them two Senators.    The randomness of the block will offset any
error.

Calvin H. Johnson 
Andrews & Kurth Centennial Professor of Law 
The University of  Texas  School of Law 
727 E. Dean Keeton (26th) St. 
Austin, TX 78705 
(512) 232-1306 (voice) 
FAX: (512) 232-2399 
Website: http://www.utexas.edu/law/faculty/cvs/chj7107_cv.pdf 
For reviews, chapters, discounts and news on Johnson, Righteous Anger at
the Wicked States: The Meaning of the Founders Constitution (Cambridge
University Press 2005) see
http://www.utexas.edu/law/faculty/calvinjohnson/RighteousAnger/

-----Original Message-----
From: Coyle, Dennis [mailto:COYLE at law.edu] 
Sent: Thursday, August 03, 2006 5:28 PM
To: Calvin Johnson; Conlawprof at lists.ucla.edu
Subject: RE: One man one vote

yes, that's an oddity that makes absurd the Court's mantra of one
person, one vote. We actually wrote editorials in Kingsport way back
when about that.

And I agree that Baker would be better as a republican government case.
That would be more intellectually honest (the opinions read more like a
republican govvernment debate), and the failure to do so strikes me as
pure political gamesmanship (not surprising or even troubling, perhaps,
if we reject the law-politics distinction): by picking a new doctrine,
it was less obvious that it was a new political majority on the Court
rejecting an old doctrine for political reasons.  

More fundamentally, as a fan of apparently implausible political
theories, I say three cheers for rotten boroughs, at least of the rural
variety.  Rural voters are the only group that are by definition
marginalized in one-person, one-vote systems: if they congregate enough
to have any clout, they're  no longer urban.  Growing up on a small farm
outside a small town at the time of Baker and Reynolds, the sense of how
that wiped out effective political representation is still vivid.  I
also think that representation skewed toward geographical entities has
virtue as well. Thank goodness the Senate is in the Constitution, or
that would have been wiped out as well.  If nothing else, more urban
liberals might appreciate that it gives all those crazies with guns who
inhabit the wasteland between New York and California at least the
illusion that they have some stake in the system. :)

>From my perspective, the system is still less than perfect because large
states with small populations tend to be much more urban (Nevada may be
the most extreme case) than people realize, so it's not so much a bunch
of cowboys controlling the Senate.

Dennis

________________________________

From: conlawprof-bounces at lists.ucla.edu on behalf of Sanford Levinson
Sent: Thu 8/3/2006 5:04 PM
To: Calvin Johnson; Conlawprof at lists.ucla.edu
Subject: RE: One man one vote

My colleague Calvin writes:

In a Democracy, elected officials represent
people, not trees, square miles, estates, castes or dotted lines."   

This may be true, but note well that focusing on "equal numbers of
people" is logically altogether different from anything captured in the
notion of "one person/one vote," since it is patently obvious that there
are significant variations in the number of voters even in "equal
population" districts.  Why this is legitimate is something the Court,
in the 42 years since Reynolds, has never come close to explaining.

sandy

________________________________

From: conlawprof-bounces at lists.ucla.edu on behalf of Calvin Johnson
Sent: Thu 8/3/2006 4:47 PM
To: Conlawprof at lists.ucla.edu
Subject: One man one vote

Ill go with John Ely, who has written the rules for legitimacy of
Constitutional law for our time. .  The legitimacy of the Courts is to
come in to ensure that the Democracy works by fair rules, and not when
they redo substance.   In a Democracy, elected officials represent
people, not trees, square miles, estates, castes or dotted lines.    All
variations in people per elected representative demean the basic
political value of the people who have the larger number of people per
elected official
        The Senate is filled with rotten boroughs and is not legitimate
as a model or analogy base,  To paraphrase good James Wilson , it is
magic and not reason that calls 100,000 a state and thereby gives them
the force of 67 time or 6,700,000 million.   The ersatz Wyoming and
Idaho cowboys are just not as valuable as the real Texas ones, much less
worth 55 times more. 

Calvin H. Johnson
Andrews & Kurth Centennial Professor of Law
The University of  Texas  School of Law
727 E. Dean Keeton (26th) St.
Austin, TX 78705
(512) 232-1306 (voice)
FAX: (512) 232-2399
Website: http://www.utexas.edu/law/faculty/cvs/chj7107_cv.pdf
For reviews, chapters, discounts and news on Johnson, Righteous Anger at
the Wicked States: The Meaning of the Founders Constitution (Cambridge
University Press 2005) see
http://www.utexas.edu/law/faculty/calvinjohnson/RighteousAnger/

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Coyle, Dennis
Sent: Thursday, August 03, 2006 2:18 PM
To: Sanford Levinson; Conlawprof at lists.ucla.edu
Subject: RE: the political thicket

For what it's worth, it's always seemed to me that the Court in Baker
and Reynolds not only allowed the federal courts to enter the political
thicket, but made it worse, by undermining the legitimacy of any
criterion other than raw numbers.  The dissenting opinions of
Frankfurter and Harlan are classics, not only on the dubious doctrine
and warnings of judicial quagmire of districting, but on the larger
issues of the structure of representative government and the role of the
courts in righting any wrongs.

Sandy, why the qualification about Reynolds?  What's the difference?
Even though Baker was ostensibly not on the merits, don't the opinions
rather clearly telgraph what is coming in Reynolds?

Dennis

________________________________

From: conlawprof-bounces at lists.ucla.edu on behalf of Sanford Levinson
Sent: Thu 8/3/2006 1:51 PM
To: Conlawprof at lists.ucla.edu
Subject: RE: the political thicket

For anyone who still doubts the validity of Felix Frankfurter's comment
that federal courts would enter a "political thicket" if they made
districting justiciable, I offer the following story from today's Austin
American-Statesman

http://www.statesman.com/news/content/news/stories/local/08/4hearing.htm
l

Just to be clear, I still support Baker-I sometimes wonder about
Reynolds-and I am glad that the three-judge court seems to be appalled
by the newest attempt to engage in the political rape (or emasculation)
of Lloyd Doggett, who used to be my representative before Tom DeLay took
over Texas politics.  But I defy anyone to draw the sharp line between
"law" and "politics" with regard to what the Court is supposed to do in
carrying out the Supreme Court's decree in the recent Perry case.

sandy

_______________________________________________
To post, send message to Conlawprof at lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see
http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof

Please note that messages sent to this large list cannot be viewed as
private.  Anyone can subscribe to the list and read messages that are
posted; people can read the Web archives; and list members can (rightly
or wrongly) forward the messages to others.

_______________________________________________
To post, send message to Conlawprof at lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see
http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof

Please note that messages sent to this large list cannot be viewed as
private.  Anyone can subscribe to the list and read messages that are
posted; people can read the Web archives; and list members can (rightly
or wrongly) forward the messages to others.