Commentary Magazine


Reapportionment

To the Editor:

. . . Too much space is given in Alexander M. Bickel’s article [“Reapportionment & Liberal Myths,” June] to elaboration of the theory of judicial logic. The controlling issue in reapportionment is not logic but equality. The matter is further confused with considerations of the senatorial “one state—two votes” idea, one also largely irrelevant to reapportionment. Mr. Bickel makes some points, but in the end profoundly obscures the question of the courts vs. gerrymandering.

Mr. Bickel’s position is that since the courts lack the competence, political efforts are the right ones to use. But how are unapportioned disfranchised voters to invoke a political instrument? “Let a major political effort, led by majoritarian executives [governors], be tried in that direction,” cries the author; but the state political machines, perpetuated by their own gerrymandering, choose the candidates from whom governors and senators are elected. . . .

The article presents a particular point of view. . . . Unwary readers might think it is an evaluation of the role of the courts in reapportionment, but it is a piece of special pleading for a position which may be untenable, and is rather obscurely explained.

Herbert Harvey
Spring Valley, New York

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To the Editor:

Mr. Bickel offers the premise that “. . . if the representative institutions are seen as properly exercising a relatively independent, deliberate decision-making function, elections and the vote become matters of a different order of importance. . . .” [But] in recent years the legislative bodies of this country (both federal and state) could be better described as the antithesis of decision-making bodies. To deny that they deliberate would be absurd, but to say that they decide in any positive manner would be equally foolish. They obstruct rather than advance, and have in the past three years prevented any fundamental debate on the major issues which President Kennedy has earmarked as being of vital importance. . . . We have not, in fact, moved out of the late 40′s in our conception and implementation of both foreign and domestic problems and policies. . . .

We can no longer sit back . . . confident that our present political institutions are the best ones; that any necessary minor alterations can be handled by the powers that be. No state or federal representative is going to legislate himself out of a job. Reform is so long overdue that the changes which are needed necessitate major surgery, and this can come only from outside the system.

Mr. Bickel writes: “. . . our imperfect representative institutions are better fitted than the courts to tinker with the system.” . . . Many people would agree with this concept of American politics, including the Supreme Court. Thus, it would seem that the Court’s decision involved not dictating what reforms are necessary, but rather pointing out the fact that something has to be done. The nature and shape of these reforms, “within reason,” should be constructed and carried out by the politicians themselves . . . but if they are too much stuck in the rut of obstruction and postponement, the Supreme Court has given notice that it can and will act to guarantee that some form of equality be established.

Mr. Bickel’s basic assumption . . . is that democracy comes from access and participation rather than the vote. . . . His view of politics—the Burkean model of virtual representation, what we call the republican form of government—assumes that only the best types will be selected to govern. In practice, of course, this has been honored more in the breach. Democracy is the rule of the people; if we cannot have the best men reflecting and deciding for us then we must try to do it ourselves. Our history, in fact, has been a process of giving the people more say in the government. This has been most evident in our voting reforms, i.e., the abolition of property qualifications, the direct election of Senators, and the virtual abandonment of the electoral college system. . . .

We must assume that the people, if given a chance, will decide what is right for themselves and for the country. They have not done so badly with the Presidents elected during the past few decades. It ought to be possible to devise a system through which the people who elect the President—the people of the cities—would have their proportionate say in electing a Congress. If America is really a democracy, let us not be afraid of establishing the institutions of one.

William M. Vogel
Abeokuta Grammar School
Abeokuta, Nigeria

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To the Editor:

Alexander M. Bickel wonders whether there are “enough Silk Stockings in New York, for example, to elect a Congressman from an equal, compact, contiguous Silk Stocking district.” As Republicans go, Mr. Lindsay is exceptionally enlightened, which, apparently, is Mr. Bickel’s point. But, alas, the same Silk Stockings who cherish Mr. Lindsay, returned to Congress for years almost without number his predecessor, the impeccably reactionary Frederic W. Coudert. For that matter, the non-Silk Stockings of Manhattan’s West Side have elected and re-elected the still more enlightened William F. Ryan. Equal apportionment may not be a good idea, but Mr. Bickel’s illustration fails to support his case.

Robert Lekachman
New York City

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To the Editor:

. . . Mr. Bickel is entitled to apply law-school definitions to the abstract constitutional questions which seem to bother him. It is when he steps into the realities of apportionment and the practical problems of two-party government that, to those of us in what he calls “the messy political arena,” his observations and conclusions become ludicrous. And it is precisely here in this sweating, contending, political atmosphere, that the Court must first come to determine what “equal protection of the laws” really means—just as it needed the testimony of school psychologists to pierce the “separate but equal” theory in the segregation cases.

I am a Democratic member of the New York State Legislature—which the Democratic party has won in only one year out of the last fifty and in which the Republican party has won fifty-three of the last fifty-six Assembly elections and thirty of the last thirty-four Senate elections since the 1894 Constitution established the current formula. This has occurred despite the fact that a Democratic governor has served in twenty-seven out of the last fifty and that Democratic legislative candidates have polled a higher aggregate vote than their Republican opponents in each house in the last three legislative elections.

Mr. Bickel assumes that the election of a governor on a one-person-one-vote basis in some way balances the immense and exclusive power of the legislature to propose and enact legislation. He then suggests that the governor—who can only act negatively by veto and affirmatively by press release—might lead the fight to correct the “institutional habits” by which state legislatures husband their power. No participant in the legislative process could make this error—it is not so and it is simply not possible.

It is possible, Professor Bickel continues, that the real fault of state legislatures lies not in malapportionment and self-perpetuation, but in their antiquated procedures and seniority systems. What he overlooks—and what is clear to any observer in the arena—is that these procedures are the weeds which flourish in and help to obscure the neglected garden of malapportioned one-party state legislatures.

The strongest, least realistic statement of all is that “State governments subsist in large measure on federal handouts,” and this may be the real cause of “urban rot and the obsolescence of federalism.” What nonsense!—federal programs have developed largely because lop-sided state legislatures have been unable or unwilling to undertake urban social programs without such aid. But Mr. Bickel apparently suggests that cutting down federal aid might be a good way to rehabilitate state legislatures and their procedures!

Mr. Bickel suggests a mass assault by the “under-represented” on the political arena, “exerting every ounce of power and influence we can command.” . . . [But] apportionment laws are administered by those whose stake is power, while his stake is righteous indignation. I have seen too many ounces of “power and influence” diffused in that kind of fight to place much reliance upon the sophisticated help which Professor Bickel offers.

“Careful gerrymandering” might accomplish the same discrimination as malapportionment, says the professor, and therefore, I take him to conclude, judicial intervention would serve no purpose. This does not stand up to classroom analysis, whether as a practical argument or a principle of constitutional law. Gerrymandering is the handmaiden of malapportionment—a part of the politics of self-perpetuation. A truer two-party system—each party taking the risk of the vote rather than the assurance of an apportionment formula—could lead, through a balance of risks, to the non-partisan method of redistricting we all desire.

Finally, Professor Bickel doubts the “equal-vote premise,” i.e., that it is essential to a representative system that each person have one vote fairly counted. But it is simple fairness (the ultimate foundation of democracy) that we try as best we can to have each legislator represent an equal number of people in at least one house of the legislature. And we have come to the point in our political life at which the Supreme Court is the last hope of re-establishing simple fairness to urban voters in legislative choice.

At every turn in our rich constitutional history, legal academicians can be found carefully explaining why the turn should not be made. It is the genius of an organic Constitution that the Supreme Court has had the capacity to look at the facts of life as well as the abstract law.

Jack E. Bronston
5th District
The Senate
Albany, New York

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Mr. Bickel writes:

I may say to Mr. Harvey that I regret any obscurities I may have perpetrated. And I agree with him that my position may be untenable. But I have been unable to persuade myself that it is. I suppose I ought to assure Mr. Harvey that I have no vested interest in malapportionment, and no cause to plead. Mr. Lekachman mistakes my point. It isn’t that I think it worthwhile to keep John Lindsay in Congress (though on other grounds I do think so), but that I believe the Silk Stockings should be represented by a man specially responsive and congenial to them, whoever he may be, even a Coudert. I think the same of Negroes, Puerto Ricans, farmers, and other distinguishable groups of reasonable size. Mr. Vogel and I seem to be at one on a number of points. But I firmly disclaim the Burkean view of representation, and don’t see why Mr. Vogel expects that reapportionment will “get the country moving again.”

Quite evidently, Senator Bronston and I adopt different premises, and also, I think, different manners of debate. The senator believes that the equal-vote principle embodies simple fairness. I have permitted myself to doubt that this is a meaningful statement, and have tried to explain why. Certain conclusions follow for Mr. Bronston. They don’t for me. One thing I did not suggest was that federal grants-in-aid ought to be cut down, though there would be some point in administering them somewhat differently.

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