When SCOTUS still fixed things: What America looked like before the Warren Court

Earl Warren's Supreme Court changed the landscape of America forever. Here's how bad things had gotten

Published June 29, 2014 3:30PM (EDT)

Chief Justice Earl Warren and the eight associate justices of the Supreme Court, Nov. 19, 1962.          (AP)
Chief Justice Earl Warren and the eight associate justices of the Supreme Court, Nov. 19, 1962. (AP)

Excerpted from “On Democracy's Doorstep: The Inside Story of How the Supreme Court Brought "One Person, One Vote" to the United States.”

The problem of apportionment, like many episodes in the contested history of democracy in the United States, reflects one of the deepest and most long-standing political and cultural divides in American society—the divide between city and countryside, between coast and heartland. Addressing delegates to the 1894 New York Constitutional Convention, Henry J. Cookingham, a lawyer and former state representative from Oneida County, disparaged residents of the state’s rapidly growing cities, and especially their corrupt political leaders, as he argued passionately in favor of an “honest, fair and just apportionment” that would ensure continued rural control of the state. “I say without fear of contradiction,” he said, “that the average citizen in the rural district is superior in intelligence, superior in morality, superior in self-government, to the average citizen in the great cities.”

More than three decades later, Baltimore journalist and satirist H. L. Mencken reached a decidedly different conclusion. Looking ahead to the 1928 presidential election, Mencken noted that “the essential struggle in America, during the next fifty years, will be between city men and yokels. The yokels have ruled the Republic since its first days—often, it must be added, very wisely. But now they decay and are challenged, and in the long run they are bound to be overcome.” He added, with his typically unsparing disdain, that “the yokels hang on because old apportionments give them unfair advantages. The vote of a malarious peasant on the lower Eastern Shore counts as much as the votes of twelve Baltimoreans. But that can’t last. It is not only unjust and undemocratic; it is absurd. For the lowest city proletarian, even though he may be farm-bred, is at least superior to the yokel … In the long run he is bound to revolt against being governed from the dung-hill.”

While guilty of employing the crudest stereotypes in their rhetoric, Cookingham and Mencken were right that apportionment was one of the fundamental political issues of their time. Mencken’s city dwellers did indeed revolt, although it would take another thirty-five years and the further erosion of their political voice before they succeeded. In the interim, the rural and small-town citizens so admired by Cookingham saw their numbers thin and demographic forces turn against them. From his vantage point in the 1890s, Cookingham looked back to an earlier day, prior to the waves of immigration and urbanization that so profoundly shaped and changed the United States, and imagined a Jeffersonian golden era in which a few learned men governed wisely on behalf of the entire populace. Even as he noted the contributions that such men made in the early years of the American experiment, Mencken mocked those who struggled to cope with the changes occurring around them and who clung to power in a manner at odds with the basic principles of representative democracy. In assuming that the advance of civilization moved in one direction, from farm to city, Mencken set aside his predilection for slandering the intelligence of most people, no matter where they resided, and offered an alternative vision to Cookingham’s, one based on the conviction that the voice of every individual should carry the same weight in the political process.

Disputes over the proper basis of representation in the United States have their origins in the British method for determining parliamentary representation, from which colonial practices derived. In the British model, towns, or “boroughs,” were assigned representation in the House of Commons. As British citizens moved around and once flourishing population centers declined, representation remained fixed and ultimately produced what was called a “rotten borough” parliament in which sparsely inhabited regions, typically controlled by an absentee landlord, enjoyed considerable political clout. When Lord John Russell rose before the House of Commons in March 1831 to introduce a Reform Bill aimed at eliminating more than fifty rotten boroughs and reducing the representation of thirty other sparsely populated constituencies by half, he cited as evidence one village, Old Sarum in Wiltshire, that contained three houses and fifteen persons yet sent two members to the House of Commons. Fourteen houses in the village of Newtown and twenty-three houses in Gatton also sent representatives. By contrast, tens of thousands of inhabitants of rapidly growing cities, such as the rising industrial centers Manchester, Birmingham, and Leeds, had no representation at all. Imagining the reaction of a visitor to Britain, Russell asked his colleagues, “Would not such a foreigner be much astonished if he were taken to a green mound, and informed that it sent two members to the British Parliament?—if he were shewn a stone wall, and told that it also sent two members to the British Parliament; or, if he walked into a park, without the vestige of a dwelling, and was told that it, too, sent two members to the British parliament?” Finally passed more than a year later, the Reform Act of 1832 eliminated the rotten boroughs and expanded the franchise in Great Britain. While it did not produce the same kind of extremes as the English model, representation in the early American colonies also emphasized place over population. Virginia allotted two seats in the House of Burgesses to each county, regardless of the number of people living in each, while most towns in New England sent a representative to their legislature.

In the mid-eighteenth century, mounting revolutionary fervor in the colonies, and in particular the notion of no taxation without representation, contributed to demands for greater political equality. In his "Notes on the State of Virginia," Thomas Jefferson took issue with the malapportionment of his state’s governing body and proposed instead a model constitution in which each county sent delegates to the legislature “in proportion to the number of its qualified electors.” As he argued elsewhere, “For let it be agreed that a government is republican in proportion as every member composing it has his equal voice in the direction of his concerns … by representatives chosen by himself.” Responding to the threat of violence from frontiersmen who felt politically powerless, Pennsylvania adopted a new constitution in 1776 based on the idea that “representation in proportion to the number of taxable inhabitants is the only principle which can at all times secure liberty, and make the voice of a majority of the people the law of the land.” In Massachusetts a year later, citizens from Essex County denounced the manner in which the commonwealth granted a delegate to every township and demanded that “representatives be apportioned among the respective counties, in proportion to their number of freemen.”

Such pronouncements did not, of course, lead to political equality for all citizens in the new nation. Women, most African Americans, and many whites were denied the right to vote from the outset. But even among those who had access to the ballot, one person’s vote could prove substantially more or less consequential than another’s. At the state level, a general fear among the propertied classes that the laboring masses and frontier settlers lacked the necessary qualities for self-government led to the imposition of various suffrage restrictions and ensured that residents of certain locales continued to exercise greater power than their numbers would have otherwise indicated. Even as states abolished suffrage restrictions for all white males, a process largely completed by the 1830s, malapportionment limited the political power of the newly enfranchised and ensured that a well-to-do minority in most states maintained control of at least one legislative chamber, and thus a veto power over the entire legislative process. At the federal level, of course, the architects of the U.S. Constitution had reached a compromise by allowing small states the same number of representatives in the Senate as their much more populous neighbors. The Founders did apportion seats in the House of Representatives according to population, but they guaranteed at least one representative to every state, no matter its population, a significant caveat that would figure prominently in the reapportionment debates of the 1960s.

The formation of new states in the late eighteenth and early nineteenth centuries pushed the nation toward a greater embrace of political equality for all white men. Aided by the Northwest Ordinance of 1787, which set forth a method for the establishment of future states beyond the Appalachian Mountains and guaranteed “a proportionate representation of the people in the legislature,” a number of new western states adopted apportionments based on population. With the admission of California in 1850, the citizens of the new state, the Union’s thirty-first, wrote into their constitution an explicit population-based apportionment for both branches of their legislature. Meanwhile, some older states, such as Massachusetts, abandoned systems of representation that had allowed distinct minorities to control the state’s legislative chambers. Addressing the residents of Quincy at the 1853 state constitutional convention, Charles Francis Adams had helped the cause by denouncing the tyrannical power accumulated by residents of small towns. Within a few years, Massachusetts adopted a new system of apportionment that tied representation more closely to population. A century later, Massachusetts remained one of the most equitably apportioned states in the nation.

In most states, however, the trend toward fairer representation lost momentum in the late nineteenth and early twentieth centuries as massive waves of immigration swelled the populations of the nation’s cities. Millions of Catholics and Jews, primarily from eastern and southern Europe, began to flock to the factories and mills of the industrializing nation. These laborers not only joined a growing urban-based working class but also provided the votes municipal political machines, such as New York’s Tammany Hall, used to assume control over local governments. Meanwhile, significant internal migrations were in motion, as hundreds of thousands of rural Americans, white and black, left their farms in search of industrial jobs. The political implications of such demographic transformations—and in particular the empowerment of urban, working-class, Catholic, Jewish, and African American voters—terrified Henry Cookingham and like-minded men and women throughout the United States.

Residents of small towns and rural areas, often still in control of their states despite what was happening in the cities, introduced numerous measures to maintain political control. In state after state, they forced the adoption of constitutional and statutory provisions that protected rural and small-town minorities. Delaware and Mississippi based representation in both branches of the legislature on area and gave no consideration whatsoever to population. A dozen states did apportion both legislative chambers without regard to area and instead counted people, qualified voters, or, in the case of Indiana, male inhabitants over the age of twenty-one. But the remaining states relied on some combination of population and area, and more often than not added qualifiers that diminished the effectiveness of individual voters. States as geographically and demographically distinct as New Jersey and New Mexico, for example, apportioned one state senator to each county and ostensibly based representation in the second chamber on population, but only after guaranteeing each county at least one legislator in this chamber as well. New York and Pennsylvania set limits on the maximum number of senators from a given county, while Florida, Georgia, and Maine did the same in the apportionment of their lower chambers. Vermont and Connecticut ignored the example of Massachusetts and continued to allow each township, no matter how minuscule, its own representative.

Legislative inaction was just as effective a tool as constitutional and statutory provisions. Most states had long mandated the reapportionment of at least one branch of the legislature at regular intervals, typically after each decennial census, and more than half of the states required the regular reapportionment of both branches. Lawmakers, however, frequently chose self-interest over the law. Opting for what became known as the “silent gerrymander,” they allowed district boundaries to remain fixed for decades. Only eighteen of forty-eight states redrew boundaries in the wake of the 1940 census. Legislators in Oregon ignored their obligations for a half century after 1907. Illinois established districts in 1910 that remained in place until 1955, while Pennsylvania and Indiana reapportioned in the early 1920s but not again for thirty and forty years, respectively. Despite constitutional requirements to reapportion every ten years, Alabama and Tennessee set districts in 1901 that did not change for more than sixty years.

With each passing decade, the political influence of urban residents shrank even more in relation to their proportion of the population. Whether the result of legislative initiative or intentional neglect, by 1960 malapportionment had produced staggering inequality in virtually every state in the union. A town of 38 residents in Vermont constituted the smallest legislative district in the United States and elected the same number of representatives—one—as Burlington, population 33,000. In New Jersey, the state’s twenty-one senators represented as few as 48,555 people or as many as 923,545. In Georgia, house districts contained between 1,876 and 185,422 constituents. Senate districts in Georgia ranged from 13,050 to 556,326, in Idaho from 915 to 93,460, and in Arizona from 3,868 to 331,755. In California, more than 6 million residents of Los Angeles County, nearly 40 percent of the state’s total population, elected just one state senator, as did the 14,294 inhabitants of three sparsely populated counties. California’s thirty-eighth senatorial district (Los Angeles County) was not only the most populous legislative district in the United States, but had five times more residents than the second largest, a senate district in Texas.

In addition to comparing the populations of the largest and smallest districts in a given legislative chamber, political scientists measured malapportionment by looking at the percentage of the population living in districts represented by a majority of a legislative body. In January 1962, only five states—Massachusetts, New Hampshire, Oregon, West Virginia, and Wisconsin—apportioned districts so that majorities in both chambers of the legislature represented at least 40 percent of the population. In twenty-three states, by contrast, the theoretical minimum in the state senate was less than 30 percent, and in ten of those, the figure did not reach 20 percent. Lower legislative chambers tended to be slightly more representative. In fifteen states, theoretical minimums of less than 30 percent controlled a majority in the lower chamber, and in five of those states, 20 percent or less proved sufficient. Florida held the distinction as the only state in which legislative majorities in both branches of the legislature represented less than 20 percent of the residents. In California, a majority of the forty-member senate represented as few as 10.7 percent of the state’s nearly sixteen million residents, making the California senate the second most malapportioned legislative body in the United States. Only the Nevada senate, in which a majority represented 8 percent of the state’s 285,278 residents, was less representative of the population as a whole.

*   *   *

In most states, state legislators drew, and still draw, boundaries for the U.S. House of Representatives. Consequently, congressional districts within individual states had also become severely malapportioned by the mid-twentieth century. Although not generally as excessive as legislative malapportionment, congressional disparities prompted one observer in 1954 to refer to the lower chamber of Congress as the “House of Un-Representatives.” James Madison, the lead architect of the Constitution, had foreseen such a possibility and warned that “the inequality of the representation in the legislatures of particular states would produce a like inequality in their representation in the national legislature.” To restrain the potential for this kind of abuse, the Founding Fathers empowered Congress to regulate the time and manner of congressional elections. Between 1842 and 1872, Congress passed a series of laws requiring that its members be elected from single-member districts with “as nearly as practicable an equal number of inhabitants.” Subsequent legislation mandated compact and contiguous districts, a clear attempt to minimize gerrymandering.

The 1920 census revealed that, for the first time, a majority of Americans lived in urban areas. Not coincidentally, Congress that year failed to reapportion the House of Representatives for the first—and, as it has turned out, only—time in American history. The farm bloc and prohibitionists, in particular, feared the consequences of congressional reapportionment. Members of Congress from states set to lose representation opposed reapportionment, as did shortsighted congressmen from states set to gain representation, more concerned, as they were, that members of the opposing political party controlled the state legislature and thus the redistricting process. The national press lambasted Congress for its failure to act, while several commentators emphasized the coincidence between the discrimination suffered by people in states underrepresented in Congress and the plight of urban residents who lacked adequate representation in state legislatures. After nearly a decade of gridlock, Congress finally passed the Reapportionment Act of 1929, but only after gutting key provisions put in place over the previous eighty years.

The act freed states to draw congressional districts that were neither compact nor contiguous, and that made no pretense of containing equal numbers of inhabitants. Even by the relatively forgiving standards suggested at the time by the American Political Science Association, more than 35 percent of the congressional districts in the United States were malapportioned by 1960. In nineteen states, the largest district had more than twice the number of residents as the smallest. In six of those states, disparities were simply staggering. Districts in Arizona, Colorado, Georgia, and Maryland exceeded a three-to-one ratio, while the largest district in Texas contained more than four times the number of residents as the smallest district. No state, however, approached Michigan, home to a large nonwhite population and a bastion of unionized labor, in its embrace of congressional malapportionment. The state’s Republican-controlled legislature created districts that ranged from 117,431 to 802,994 residents, a ratio of nearly seven to one. Into the 1960s, Detroit constituted one of the thirteen largest congressional districts in the United States; the others comprised all or parts of Houston, Dallas, San Antonio, Atlanta, Indianapolis, Birmingham, Seattle, Miami, Columbus and Dayton in Ohio, and Bridgeport and Hartford in Connecticut.

Those who most clearly benefited from the drawing of America’s rotten boroughs included a disproportionate number of congressional leaders. House Speaker Sam Rayburn, a Democrat from Texas, represented the fifteenth least populous district in the United States. His district was so small, and his hold on the district so complete, that Rayburn received fewer than sixteen thousand votes when he was reelected in 1958. At least eight of twenty committee chairs in the House of Representatives came from overrepresented districts, including Wayne Aspinall of Colorado, who hailed from the fourth-smallest district in the nation, and Wilbur Mills of Arkansas, who represented the eleventh-smallest district. On the other side of the aisle, at least two members of the Republican leadership represented small districts in Michigan.

*   *   *

Malapportionment proved consequential in Washington, D.C., and in every region of the United States. Across most of the nation, but especially in states with large metropolitan centers, malapportionment limited the ability of working-class Catholics, Jews, African Americans, and progressive reformers of all races and creeds to improve working conditions, increase funding for education and health and welfare programs, and advance civil rights protections. In the South, malapportionment solidified the power of a small percentage of rural white voters who dominated state and regional politics and allowed them to stifle substantive racial reform for decades. To cite one example, when the Virginia legislature voted in 1956 to close public schools rather than integrate, the twenty-one state senators who voted in favor of the action represented fewer Virginians than did the seventeen senators who opposed it.

Malapportionment was certainly about race and ethnicity, about nativism and distrust, about fear of the other. But malapportionment served, above all, as a practical and eminently useful tool for maintaining power. This was its allure, but also its weakness. By ensuring minority control of government in a purportedly democratic nation, it stood on a shaky foundation. The plaintiffs and lawyers responsible for the reapportionment revolution of the 1960s, including those from southern states, chose not to dwell on race in their legal briefs and oral arguments. Rather, they emphasized the broader denial of the rights of individual citizens, abridged not on account of race but on the mundane realities of residence.

Both major political parties relied on malapportionment to further their own, often minority, interests. In the South, Democrats benefited most clearly from malapportionment. In the rest of the country, Democrats tended to enjoy more support in urban areas and thus the Republicans in these states gained more from malapportionment. As one journalist noted in the late 1950s with reference to New York, Illinois, and Michigan, the upper chamber “has been given, virtually in perpetuity, to the Republicans. It has become a rural conservative fortress, a kind of petty House of Lords almost above the swings of majority rule.” He added, “This follows the political rule that Republicans where possible shortchange Democrats, and Democrats where possible shortchange Republicans, and both shortchange city-dwellers.”

Where existing malapportionment did not suffice, legislators turned to the old and familiar tactic of gerrymandering, of crafting political boundaries for distinctly partisan advantage. Gerrymandering took its name from Elbridge Gerry, who, even though he did not invent the practice, employed it so flagrantly that his name defines the practice two centuries later. Gerry was the governor of Massachusetts in 1812, when he sanctioned his party’s creation of a district so twisted and contorted that critics likened it to a salamander. A century and a half later, operatives in the employ of both major political parties proved as adept at picking their constituents as had Gerry’s lieutenants. Writing in the Christian Science Monitor on the eve of the reapportionment revolution, George Merry remarked, “If a preschool child was turned loose with a pencil and a map of the United States, he couldn’t possibly scribble more irregular, jagged-shaped patterns for congressional districts than have been contrived already by some state legislatures.” As Gus Tyler, the political director of the International Ladies’ Garment Workers’ Union and a leading voice in reapportionment debates in the 1950s and 1960s, put it, gerrymandering “viciously multiplied” the inequities created by malapportionment.

*   *   *

By the middle of the twentieth century, England, the original home of the rotten borough, had passed a series of reform laws that had led to parliamentary districts that were, in the words of New York Times reporter Anthony Lewis, “carved out with sterile precision” and that tolerated “no population inequalities of any significance.” In the United States, by contrast, the situation was becoming worse. One report concluded that three-fourths of state legislatures were less representative in 1955 than they had been twenty years before. In this regard, Michigan was certainly typical.

In the wake of the 1954 elections, a pair of memoranda labeled “confidential” and addressed to Republican Party employees in Michigan laid out in detail the degree to which their power was based in malapportionment. Credited to a fictitious Republican state senator (“Mossback McKinley”) from a nonexistent district, the memos were almost certainly the creation of Democratic Party operatives, but they nevertheless reveal the absurdity of Michigan politics. In that year’s elections, the memos emphasized, more than 55 percent of voters in Michigan reelected the Democratic incumbent governor G. Mennen “Soapy” Williams, who romped to a fourth two-year term by more than 250,000 votes. But just as in each of the six terms that he eventually served, Williams found himself facing a legislature controlled by the opposing party. In balloting for the state house, Republicans received 47.6 percent of the vote but held on to 53.6 percent, or 59, of the 110 seats. In the state senate, GOP candidates tallied 48.7 percent of the ballots but claimed an amazing 67.6 percent of the seats. Twenty-three Republican senators in Michigan represented an average of 142,579 people, while eleven Democratic each voted on behalf of 281,131 constituents. Malapportionment in the Michigan senate was so extreme and so entrenched that Democrats would have needed to win 70 percent of the votes to take control of the chamber.

Republicans in Michigan in the 1950s, like Democrats and Republicans elsewhere, continued to exert minority control as long as they were able to beat back reform efforts led by municipal officials, civic organizations such as the League of Women Voters, and labor unions. As Mossback McKinley warned, “We must be ever vigilant against the Democrats and other elements of our society who are sure to propose another scheme of equal legislative representation which would result in nothing short of putting control of our Government in the hands of the majority of the people.” It is perhaps telling that the Democrats in Michigan attempted to find some sort of political and psychic refuge in parody. They and their opponents were confident that the state’s artfully rigged electoral system would continue indefinitely. Little did they or other politically engaged Americans appreciate how quickly their world was about to change.

Excerpted from “On Democracy's Doorstep: The Inside Story of How the Supreme Court Brought "One Person, One Vote" to the United States” by J. Douglas Smith. Copyright © 2014 by J. Douglas Smith. Reprinted by arrangement with Hill and Wang, a division of Farrar, Straus and Giroux. All rights reserved.

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