U.S. Supreme Court Wesberry v. Sanders, 376 U.S. 1 (1964) Wesberry v. Sanders No. 22 Argued November 18-19,
1963 Decided February 17,
1964 376 U.S.
1 APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE NORTHERN DISTRICT OF
GEORGIA Syllabus Appellants are qualified voters in Georgia's Fifth Congressional
District, the population of which is two to three times greater
than that of some other congressional districts in the State. Since
there is only one Congressman for each district, appellants claimed
debasement of their right to vote resulting from the 1931 Georgia
apportionment statute and failure of the legislature to realign
that State's congressional districts more nearly to equalize the
population of each. They brought this class action under 42 U.S.C.
§§ 1983 and 1988 and 28 U.S.C. § 1343(3), asking that the
apportionment statute be declared invalid and that appellees, the
Governor and Secretary of State, be enjoined from conducting
elections under it. A three-judge District Court, though
recognizing the gross population imbalance of the Fifth District in
relation to the other districts, dismissed the complaint for "want
of equity." Held: 1. As in Baker v. Carr, 369 U.
S. 186 , which involved alleged malapportionment of seats
in a state legislature, the District Court had jurisdiction of the
subject matter; appellants had standing to sue, and they had stated
a justiciable cause of action on which relief could be granted. Pp. 376 U. S. 5 -6.

															2. A complaint alleging debasement of the right to vote as a
result of a state congressional apportionment law is not subject
to Page 376 U. S. 2 dismissal for "want of equity" as raising a wholly "political"
question. Pp. 376 U. S. 6 -7.

															3. The constitutional requirement in Art. I, § 2,that
Representatives be chosen "by the People of the several States"
means that, as nearly as is practicable, one person's vote in a
congressional election is to be worth as much as another's. Pp. 376 U.S. 7 -8, 376 U. S. 18 . 206 F.
Supp. 276 , reversed and remanded.

															MR. JUSTICE BLACK delivered the opinion of the Court.

															Appellants are citizens and qualified voters of Fulton County,
Georgia, and as such are entitled to vote in congressional
elections in Georgia's Fifth Congressional District. That district,
one of ten created by a 1931 Georgia statute, [ Footnote 1 ] includes Fulton, DeKalb, and Rockdale
Counties, and has a population, according to the 1960 census, of
823,680. The average population of the ten districts is 394,312,
less than half that of the Fifth. One district, the Ninth, has only
272,154 people, less than one-third as many as the Fifth. Since
there is only one Congressman for each district, this inequality of
population means that the Fifth District's Congressman has to
represent from two to three times as many people as do Congressmen
from some of the other Georgia districts. Page 376 U. S. 3 Claiming that these population disparities deprived them and
voters similarly situated of a right under the Federal Constitution
to have their votes for Congressmen given the same weight as the
votes of other Georgians, the appellants brought this action under
42 U.S.C. §§ 1983 and 1988 and 28 U.S.C. § 1343(3), asking that the
Georgia statute be declared invalid and that the appellees, the
Governor and Secretary of State of Georgia, be enjoined from
conducting elections under it. The complaint alleged that
appellants were deprived of the full benefit of their right to
vote, in violation of (1) Art. I, § 2, of the Constitution of the
United States, which provides that "The House of Representatives
shall be composed of Members chosen every second Year by the People
of the several States . . . "; (2) the Due Process, Equal
Protection, and Privileges and Immunities Clauses of the Fourteenth
Amendment, and (3) that part of Section 2 of the Fourteenth
Amendment which provides that "Representatives shall be apportioned
among the several States according to their respective numbers. . .
."

															The case was heard by a three-judge District Court, which found
unanimously, from facts not disputed, that:

															"It is clear by any standard . . . that the population of the
Fifth District is grossly out of balance with that of the other
nine congressional districts of Georgia, and, in fact, so much so
that the removal of DeKalb and Rockdale Counties from the District,
leaving only Fulton with a population of 556,326, would leave it
exceeding the average by slightly more than forty percent.
[ Footnote 2 ]"

															Notwithstanding these findings, a majority of the court
dismissed the complaint, citing as their guide Mr. Justice
Frankfurter's minority opinion in Colegrove v. Green, 328 U. S. 549 , an
opinion stating that challenges to apportionment Page 376 U. S. 4 of congressional districts raised only "political" questions,
which were not justiciable. Although the majority below said that
the dismissal here was based on "want of equity," and not on
nonjusticiability, they relied on no circumstances which were
peculiar to the present case; instead, they adopted the language
and reasoning of Mr Justice Frankfurter's Colegrove opinion in concluding that the appellants had presented a wholly
"political" question. [ Footnote
3 ] Judge Tuttle, disagreeing with the court's reliance on that
opinion, dissented from the dismissal, though he would have denied
an injunction at that time in order to give the Georgia Legislature
ample opportunity to correct the "abuses" in the apportionment. He
relied on Baker v. Carr, 369 U. S. 186 ,
which, after full discussion of Colegrove and all the
opinions in it, held that allegations of disparities of population
in state legislative districts raise justiciable claims on which
courts may grant relief. We noted probable jurisdiction. 374 U.S.
802. We agree with Judge Tuttle that, in debasing the weight of
appellants' votes, the State has abridged the right to vote for
members of Congress guaranteed them by the United States
Constitution, that the District Court should have entered a
declaratory judgment to that effect, and that it was therefore
error to dismiss this suit. The question of what relief should be
given we leave for further consideration and decision by the
District Court in light of existing circumstances. Page 376 U. S. 5 I Baker v. Carr, supra, considered a challenge to a 1901
Tennessee statute providing for apportionment of State
Representatives and Senators under the State's constitution, which
called for apportionment among counties or districts "according to
the number of qualified voters in each." The complaint there
charged that the State's constitutional command to apportion on the
basis of the number of qualified voters had not been followed in
the 1901 statute, and that the districts were so discriminatorily
disparate in number of qualified voters that the plaintiffs and
persons similarly situated were, "by virtue of the debasement of
their votes," denied the equal protection of the laws guaranteed
them by the Fourteenth Amendment. [ Footnote 4 ] The cause there of the alleged "debasement" of
votes for state legislators -- districts containing widely varying
numbers of people -- was precisely that which was alleged to debase
votes for Congressmen in Colegrove v. Green, supra, and in
the present case. The Court in Baker pointed out that the
opinion of Mr. Justice Frankfurter in Colegrove, upon the
reasoning of which the majority below leaned heavily in dismissing
"for want of equity," was approved by only three of the seven
Justices sitting. [ Footnote 5 ]
After full consideration of Colegrove , the Court in Baker held (1) that the District Court had jurisdiction of
the subject matter; (2) that the qualified Tennessee voters there
had standing to sue; and Page 376 U. S. 6 (3) that the plaintiffs had stated a justiciable cause of action
on which relief could be granted.

															The reasons which led to these conclusions in Baker are
equally persuasive here. Indeed, as one of the grounds there relied
on to support our holding that state apportionment controversies
are justiciable, we said:

															". . . Smiley v. Holm, 285 U. S.
355 , Koenig v. Flynn, 285 U. S.
375 , and Carroll v. Becker, 285 U. S.
380 , concerned the choice of Representatives in the
Federal Congress. Smiley, Koenig, and Carroll settled the issue in favor of justiciability of questions of
congressional redistricting. The Court followed these precedents in Colegrove, although over the dissent of three of the seven
Justices who participated in that decision. [ Footnote 6 ]"

															This statement in Baker , which referred to our past
decisions holding congressional apportionment cases to be
justiciable, we believe was wholly correct, and we adhere to it.
Mr. Justice Frankfurter's Colegrove opinion contended that
Art. I, § 4, of the Constitution [ Footnote 7 ] had given Congress "exclusive authority" to
protect the right of citizens to vote for Congressmen, [ Footnote 8 ] but we made it clear in Baker that nothing in the language of that article gives
support to a construction that would immunize state congressional
apportionment laws which debase a citizen's right to vote from the
power of courts to protect the constitutional rights of individuals
from legislative destruction, a power recognized at least since our
decision in Marbury v.
Madison , 1 Cranch 137, in 1803. Cf. 22 U. S. S. 7� v. Ogden,@ 9 Wheat. 1. The right to vote is too important in our
free society to be stripped of judicial protection by such an
interpretation of Article I. This dismissal can no more be
justified on the ground of "want of equity" than on the ground of
"nonjusticiability." We therefore hold that the District Court
erred in dismissing the complaint. II This brings us to the merits. We agree with the District Court
that the 1931 Georgia apportionment grossly discriminates against
voters in the Fifth Congressional District. A single Congressman
represents from two to three times as many Fifth District voters as
are represented by each of the Congressmen from the other Georgia
congressional districts. The apportionment statute thus contracts
the value of some votes and expands that of others. If the Federal
Constitution intends that, when qualified voters elect members of
Congress, each vote be given as much weight as any other vote, then
this statute cannot stand.

															We hold that, construed in its historical context, the command
of Art. I, § 2 that Representatives be chosen "by the People of the
several States" [ Footnote 9 ]
means that, as Page 376 U. S. 8 nearly as is practicable, one man's vote in a congressional
election is to be worth as much as another's. [ Footnote 10 ] This rule is followed
automatically, of course, when Representatives are chosen as a
group on a statewide basis, as was a widespread practice in the
first 50 years of our Nation's history. [ Footnote 11 ] It would be extraordinary to suggest
that, in such statewide elections, the votes of inhabitants of some
parts of a State, for example, Georgia's thinly populated Ninth
District, could be weighted at two or three times the value of the
votes of people living in more populous parts of the State, for
example, the Fifth District around Atlanta. Cf. Gray v.
Sanders, 372 U. S. 368 . We
do not believe that the Framers of the Constitution intended to
permit the same vote-diluting discrimination to be accomplished
through the device of districts containing widely varied numbers of
inhabitants. To say that a vote is worth more in one district than
in another would not only run counter to our fundamental ideas of
democratic government, it would cast aside the principle of a House
of Representatives elected "by the People," a principle tenaciously
fought for and established at the Constitutional Convention. The
history of the Constitution, particularly that part of it relating
to the adoption of Art. I, § 2, reveals that those who framed the
Constitution Page 376 U. S. 9 meant that, no matter what the mechanics of an election, whether
statewide or by districts, it was population which was to be the
basis of the Hose of Representatives.

															During the Revolutionary War, the rebelling colonies were
loosely allied in the Continental Congress, a body with authority
to do little more than pass resolutions and issue requests for men
and supplies. Before the war ended, the Congress had proposed and
secured the ratification by the States of a somewhat closer
association under the Articles of Confederation. Though the
Articles established a central government for the United States, as
the former colonies were even then called, the States retained most
of their sovereignty, like independent nations bound together only
by treaties. There were no separate judicial or executive branches:
only a Congress consisting of a single house. Like the members of
an ancient Greek league, each State, without regard to size or
population, was given only one vote in that house. It soon became
clear that the Confederation was without adequate power to collect
needed revenues or to enforce the rules its Congress adopted.
Farsighted men felt that a closer union was necessary if the States
were to be saved from foreign and domestic dangers.

															The result was the Constitutional Convention of 1787, called for
"the sole and express purpose of revising the Articles of
Confederation. . . ." [ Footnote
12 ] When the Convention Page 376 U. S. 10 met in May, this modest purpose was soon abandoned for the
greater challenge of creating a new and closer form of government
than was possible under the Confederation. Soon after the
Convention assembled, Edmund Randolph of Virginia presented a plan
not merely to amend the Articles of Confederation, but to create an
entirely new National Government with a National Executive,
National Judiciary, and a National Legislature of two Houses, one
house to be elected by "the people," the second house to be elected
by the first. [ Footnote
13 ]

															The question of how the legislature should be constituted
precipitated the most bitter controversy of the Convention. One
principle was uppermost in the minds of many delegates: that, no
matter where he lived, each voter should have a voice equal to that
of every other in electing members of Congress. In support of this
principle, George Mason of Virginia

															"argued strongly for an election of the larger branch by the
people. It was to be the grand depository of the democratic
principle of the Govt. [ Footnote
14 ]"

															James Madison agreed, saying,

															"If the power is not immediately derived from the people in
proportion to their numbers, we may make a paper confederacy, but
that will be all. [ Footnote
15 ]"

															Repeatedly, delegates rose to make the same point: that it would
be unfair, unjust, and contrary to common sense to give a small
number of people as many Senators or Representatives as were
allowed to much larger groups [ Footnote 16 ] -- in short, as James Wilson of
Pennsylvania Page 376 U. S. 11 put it, "equal numbers of people ought to have an equal no. of
representatives . . . ," and representatives "of different
districts ought clearly to hold the same proportion to each other
as their respective constituents hold to each other." [ Footnote 17 ]

															Some delegates opposed election by the people. The sharpest
objection arose out of the fear on the part of small States like
Delaware that, if population were to be the only basis of
representation, the populous States like Virginia would elect a
large enough number of representatives to wield overwhelming power
in the National Government. [ Footnote 18 ] Arguing that the Convention had no authority
to depart from the plan of the Articles of Confederation, which
gave each State an equal vote in the National Congress, William
Paterson of New Jersey said,

															"If the sovereignty of the States is to be maintained, the
Representatives must be drawn immediately from the States, not from
the people, and we have no power to vary the idea of equal
sovereignty. [ Footnote
19 ]"

															To this end, he proposed a single legislative chamber in which
each State, as in the Confederation, was to have an equal vote.
[ Footnote 20 ] A number of
delegates supported this plan. [ Footnote 21 ]

															The delegates who wanted every man's vote to count alike were
sharp in their criticism of giving each State, Page 376 U. S. 12 regardless of population, the same voice in the National
Legislature. Madison entreated the Convention "to renounce a
principle which. was confessedly unjust," [ Footnote 22 ] and Rufus King of Massachusetts

															"was prepared for every event rather than sit down under a Govt.
founded in a vicious principle of representation and which must be
as short-lived as it would be unjust. [ Footnote 23 ]"

															The dispute came near ending the Convention without a
Constitution. Both sides seemed for a time to be hopelessly
obstinate. Some delegations threatened to withdraw from the
Convention if they did not get their way. [ Footnote 24 ] Seeing the controversy growing
sharper and emotions rising, the wise and highly respected Benjamin
Franklin arose and pleaded with the delegates on both sides to
"part with some of their demands, in order that they may join in
some accommodating proposition." [ Footnote 25 ] At last those who supported representation
of the people in both houses and those who supported it in neither
were brought together, some expressing the fear that, if they did
not reconcile their differences, "some foreign sword will probably
do the work for us." [ Footnote
26 ] The deadlock was finally broken when a majority of the
States agreed to what has been called the Great Compromise,
[ Footnote 27 ] based on a
proposal which had been repeatedly advanced by Roger Page 376 U. S. 13 Sherman and other delegates from Connecticut. [ Footnote 28 ] It provided, on the one hand,
that each State, including little Delaware and Rhode Island, was to
have two Senators. As a further guarantee that these Senators would
be considered state emissaries, they were to be elected by the
state legislatures, Art. I, § 3, and it was specially provided in
Article V that no State should ever be deprived of its equal
representation in the Senate. The other side of the compromise was
that, as provided in Art. I, § 2, members of the House of
Representatives should be chosen "by the People of the several
States," and should be "apportioned among the several States . . .
according to their respective Numbers." While those who wanted both
houses to represent the people had yielded on the Senate, they had
not yielded on the House of Representatives. William Samuel Johnson
of Connecticut had summed it up well: "in one branch, the people ought to be represented; in the other, the States. " [ Footnote
29 ]

															The debates at the Convention make at least one fact abundantly
clear: that, when the delegates agreed that the House should
represent "people," they intended that, in allocating Congressmen,
the number assigned to each State should be determined solely by
the number of the State's inhabitants. [ Footnote 30 ] The Constitution embodied Edmund
Randolph's proposal for a periodic census to ensure "fair
representation of the people," [ Footnote 31 ] an idea endorsed by Mason as assuring that
"numbers of inhabitants" Page 376 U. S. 14 should always be the measure of representation in the House of
Representatives. [ Footnote
32 ] The Convention also overwhelmingly agreed to a resolution
offered by Randolph to base future apportionment squarely on
numbers and to delete any reference to wealth. [ Footnote 33 ] And the delegates defeated a
motion made by Elbridge Gerry to limit the number of
Representatives from newer Western States so that it would never
exceed the number from the original States. [ Footnote 34 ]

															It would defeat the principle solemnly embodied in the Great
Compromise -- equal representation in the House for equal numbers
of people -- for us to hold that, within the States, legislatures
may draw the lines of congressional districts in such a way as to
give some voters a greater voice in choosing a Congressman than
others. The House of Representatives, the Convention agreed, was to
represent the people as individuals, and on a basis of complete
equality for each voter. The delegates were quite aware of what
Madison called the "vicious representation" in Great Britain
[ Footnote 35 ] whereby
"rotten boroughs" with few inhabitants were represented in
Parliament on or almost on a par with cities of greater population.
Wilson urged that people must be represented as individuals, so
that America would escape Page 376 U. S. 15 the evils of the English system, under which one man could send
two members to Parliament to represent the borough of Old Sarum,
while London's million people sent but four. [ Footnote 36 ] The delegates referred to rotten
borough apportionments in some of the state legislatures as the
kind of objectionable governmental action that the Constitution
should not tolerate in the election of congressional
representatives. [ Footnote
37 ]

															Madison, in The Federalist, described the system of division of
States into congressional districts, the method which he and others
[ Footnote 38 ] assumed States
probably would adopt:

															"The city of Philadelphia is supposed to contain between fifty
and sixty thousand souls. It will therefore form nearly two
districts for the choice of Federal Representatives. [ Footnote 39 ]"

															"[N]umbers," he said, not only are a suitable way to represent
wealth, but, in any event, "are the only proper scale of
representation." [ Footnote
40 ] In the state conventions, speakers urging ratification of
the Constitution emphasized the theme of equal representation in
the House which had permeated the debates in Philadelphia.
[ Footnote 41 ] Page 376 U. S. 16 Charles Cotesworth Pinckney told the South Carolina
Convention,

															"the House of Representatives will be elected immediately by the
people, and represent them and their personal rights individually.
[ Footnote 42 ]"

															Speakers at the ratifying conventions emphasized that the House
of Representatives was meant to be free of the malapportionment
then existing in some of the state legislatures -- such as those of
Connecticut, Rhode Island, and South Carolina -- and argued that
the power given Congress in Art. I, § 4, [ Footnote 43 ]as meant to be used to vindicate the
people's right to equality of representation in the House.
[ Footnote 44 ] Congress'
power, said John Steele at the North Carolina convention, was not
to be used to allow Congress to create rotten boroughs; in answer
to another delegate's suggestion that Congress might use its power
to favor people living near the seacoast, Steele said that Congress
"most probably" would "lay the state off into districts," and, if
it made laws "inconsistent with the Constitution, independent
judges will not uphold them, nor will the people obey them."
[ Footnote 45 ] Page 376 U. S. 17 Soon after the Constitution was adopted, James Wilson of
Pennsylvania, by then an Associate Justice of this Court, gave a
series of lectures at Philadelphia in which, drawing on his
experience as one of the most active members of the Constitutional
Convention, he said:

															"[A]ll elections ought to be equal. Elections are equal when a
given number of citizens in one part of the state choose as many
representatives as are chosen by the same number of citizens in any
other part of the state. In this manner, the proportion of the
representatives and of the constituents will remain invariably the
same. [ Footnote 46 ]"

															It is in the light of such history that we must construe Art. I,
§ 2, of the Constitution, which, carrying out the ideas of Madison
and those of like views, provides that Representatives shall be
chosen "by the People of the several States," and shall be
"apportioned among the several States . . . according to their
respective Numbers." It is not surprising that our Court has held
that this Article gives persons qualified to vote a constitutional
right to vote and to have their votes counted. United States v.
Mosley, 238 U. S. 383 ; Ex Parte Yarbrough, 110 U. S. 651 . Not
only can this right to vote not be denied outright, it cannot,
consistently with Article I, be destroyed by alteration of ballots, see United States v. Classic, 313 U.
S. 299 , or diluted by stuffing of the ballot box, see United States v. Saylor, 322 U.
S. 385 . No right is more precious in a free country than
that of having a voice in the election of those who make the laws
under which, as good citizens, we must live. Other rights, even the
most basic, are illusory if the right to vote is undermined. Our
Constitution leaves no room for classification of people in a way
that unnecessarily abridges Page 376 U. S. 18 this right. In urging the people to adopt the Constitution,
Madison said in No. 57 of The Federalist:

															"Who are to be the electors of the Federal Representatives? Not
the rich more than the poor; not the learned more than the
ignorant; not the haughty heirs of distinguished names more than
the humble sons of obscure and unpropitious fortune. The electors
are to be the great body of the people of the United States.
[ Footnote 47 ]"

															Readers surely could have fairly taken this to mean, "one
person, one vote." Cf. Gray v. Sanders, 372 U.
S. 368 , 372 U. S.
381 .

															While it may not be possible to draw congressional districts
with mathematical precision, that is no excuse for ignoring our
Constitution's plain objective of making equal representation for
equal numbers of people the fundamental goal for the House of
Representatives. That is the high standard of justice and common
sense which the Founders set for us. Reversed and remanded. [ Footnote 1 ]

															Ga.Code, § 34-2301.

															[ Footnote 2 ] Wesberry v. Vandiver, 206 F.
Supp. 276 , 279-280.

															[ Footnote 3 ]

															"We do not deem [ Colegrove v. Green ] . . . to be a
precedent for dismissal based on the nonjusticiability of a
political question involving the Congress as here, but we do deem
it to be strong authority for dismissal for want of equity when the
following factors here involved are considered on balance: a
political question involving a coordinate branch of the federal
government; a political question posing a delicate problem
difficult of solution without depriving others of the right to vote
by district, unless we are to redistrict for the state; relief may
be forthcoming from a properly apportioned state legislature, and
relief may be afforded by the Congress."

															206 F. Supp. at 285 (footnote omitted).

															[ Footnote 4 ]

															369 U.S. at 369 U. S.
188 .

															[ Footnote 5 ]

															Mr. Justice Rutledge, in Colgerove, believed that the
Court should exercise its equitable discretion to refuse relief
because

															"The shortness of the time remaining [before the next election]
makes it doubtful whether action could, or would, be taken in time
to secure for petitioners the effective relief they seek."

															328 U.S. at 328 U. S. 565 .
In a later separate opinion, he emphasized that his vote in Colergove had been based on the "particular circumstances"
of that case. Cook v. Fortson, 329 U.
S. 675 , 329 U. S.
678 .

															[ Footnote 6 ]

															369 U.S. at 369 U.S.
232 . Cf. also Wood v. Broom, 287 U. S.
1 .

															[ Footnote 7 ]

															"The Times, Places and Manner of holding Elections for Senators
and Representatives, shall be prescribed in each State by the
Legislature thereof; but the Congress may at any time by Law make
or alter such Regulations, except as to the Places of chusing
Senators. . . ."

															U.S.Const., Art. I, § 4.

															[ Footnote 8 ]

															328 U.S. at 328 U. S.
554 [ Footnote 9 ]

															"The House of Representatives shall be composed of Members
chosen every second Year by the People of the several States, and
the Electors in each State shall have the Qualifications requisite
for Electors of the most numerous Branch of the State
Legislature."

															" * * * *" "Representatives and direct Taxes shall be apportioned among the
several States which may be included within this Union, according
to their respective Numbers, which shall be determined by adding to
the whole Number of free Persons, including those bound to Service
for a Term of Years, and excluding Indians not taxed, three fifths
of all other Persons. The actual Enumeration shall be made within
three Years after the first Meeting of the Congress of the United
States, and within every subsequent Term of ten Years, in such
Manner as they shall by Law direct. The Number of Representatives
shall not exceed one for every thirty Thousand, but each State
shall have at Least one Representative. . . ."

															U.S.Const., Art. I, § 2.

															The provisions for apportioning Representatives and direct taxes
have been amended by the Fourteenth and Sixteenth Amendments,
respectively.

															[ Footnote 10 ]

															We do not reach the arguments that the Georgia statute violates
the Due Process, Equal Protection, and Privileges and Immunities
Clauses of the Fourteenth Amendment.

															[ Footnote 11 ]

															As late as 1842, seven States still conducted congressional
elections at large. See Paschal, "The House of
Representatives: Grand Depository of the Democratic
Principle'?" 17 Law & Contemp.Prob. 276, 281 (1952). [ Footnote 12 ]

															3 The Records of the Federal Convention of 1787 (Farrand
ed.1911) 14 (hereafter cited as "Farrand").

															James Madison, who took careful and complete notes during the
Convention, believed that, in interpreting the Constitution, later
generations should consider the history of its adoption:

															"Such were the defects, the deformities, the diseases and the
ominous prospects for which the Convention were to provide a remedy
and which ought never to be overlooked in expounding &
appreciating the Constitutional Charter the remedy that was
provided." Id. at 549.

															[ Footnote 13 ]

															1 id. at 20.

															[ Footnote 14 ] Id. at 48.

															[ Footnote 15 ] Id. at 472.

															[ Footnote 16 ] See, e.g., id. at 197-198 (Benjamin Franklin of
Pennsylvania) id. at 467 (Elbridge Gerry of
Massachusetts); id. at 286, 465-466 (Alexander Hamilton of
New York); id. at 489-490 (Rufus King of Massachusetts); id. at 322, 446-449, 486, 527-528 (James Madison of
Virginia); id. at 180, 456 (Hugh Williamson of North
Carolina); id. at 253-254, 406, 449-450, 482-484 (James
Wilson of Pennsylvania).

															[ Footnote 17 ] Id. at 180.

															[ Footnote 18 ]

															Luther Martin, of Maryland, declared

															"that the States being equal cannot treat or confederate so as
to give up an equality of votes without giving up their liberty;
that the propositions on the table were a system of slavery for 10
States; that as Va. Masts. & Pa. have 42/90 of the votes, they
can do as they please without a miraculous Union of the other ten;
that they will have nothing to do but to gain over one of the ten
to make them compleat masters of the rest. . . ." Id. at 438.

															[ Footnote 19 ] Id. at 251.

															[ Footnote 20 ]

															3 id. at 613.

															[ Footnote 21 ] E.g., 1 id. at 324 (Alexander Martin of North
Carolina), id. at 437-438, 439-441, 444-445, 453-455
(Luther Martin of Maryland); id. at 490-492 (Gunning
Bedford of Delaware).

															[ Footnote 22 ] Id. at 464.

															[ Footnote 23 ] Id. at 490.

															[ Footnote 24 ]

															Gunning Bedford of Delaware said:

															"We have been told (with a dictatorial air) that this is the
last moment for a fair trial in favor of a good Government. . . .
The Large States dare not dissolve the confederation. If they do,
the small ones will find some foreign ally of more honor and good
faith who will take them by the hand and do them justice." Id. at 492.

															[ Footnote 25 ] Id. at 488.

															[ Footnote 26 ] Id. at 532 (Elbridge Gerry of Massachusetts). George
Mason of Virginia urged an "accommodation" as "preferable to an
appeal to the world by the different sides, as had been talked of
by some Gentlemen." Id. at 533.

															[ Footnote 27 ] See id. at 551.

															[ Footnote 28 ] See id. at 193, 342-343 (Roger Sherman); id. at 461-462 (William Samuel Johnson).

															[ Footnote 29 ] Id. at 462. (Emphasis in original.)

															[ Footnote 30 ]

															While "free Persons" and those "bound to Service for a Term of
Years" were counted in determining representation, Indians not
taxed were not counted, and "three fifths of all other Persons"
(slaves) were included in computing the States' populations. Art.
I, § 2. Also, every State was to have "at Least one
Representative." Ibid. [ Footnote 31 ]

															1 Farrand at 580.

															[ Footnote 32 ] Id. at 579.

															[ Footnote 33 ] Id. at 606. Those who thought that one branch should
represent wealth were told by Roger Sherman of Connecticut that
the

															"number of people alone [was] the best rule for measuring
wealth, as well as representation, and that, if the Legislature
were to be governed by wealth, they would be obliged to estimate it
by numbers." Id. at 582.

															[ Footnote 34 ]

															2 id. at 3. The rejected thinking of those who
supported the proposal to limit western representation is suggested
by the statement of Gouverneur Morris of Pennsylvania that "The
Busy haunts of men not the remote wilderness was the proper School
of political Talents." 1 id. at 583.

															[ Footnote 35 ] Id. at 464.

															[ Footnote 36 ] Id. at 457. "Rotten boroughs" have long since
disappeared in Great Britain. Today, permanent parliamentary
Boundary Commissions recommend periodic changes in the size of
constituencies as population shifts. For the statutory standards
under which these commissions operate, see House of
Commons (Redistribution of Seats) Acts of 1949, 12 13 Geo. 6, c.
66, Second Schedule, and of 1958, 6 & 7 Eliz. 2, c. 26,
Schedule.

															[ Footnote 37 ]

															2 id. at 241.

															[ Footnote 38 ] See, e.g., 2 Works of Alexander Hamilton (Lodge
ed.1904) 25 (statement to New York ratifying convention).

															[ Footnote 39 ]

															The Federalist, No. 57 (Cooke ed.1961), at 389.

															[ Footnote 40 ] Id. No. 54, at 368. There has been some question about
the authorship of Numbers 54 and 57, see The Federalist
(Lodge ed.1908) xxiii-xxxv, but it is now generally believed that
Madison was the author, see, e.g., The Federalist (Cooke
ed.1961) xxvii; The Federalist (Van Doren ed.1945) vi-vii; Brant,
"Settling the Authorship of The Federalist," 67 Am.Hist.Rev. 71
(1961).

															[ Footnote 41 ] See, e.g., 2 The Debates in the Several State
Conventions on the Adoption of the Federal Constitution (2d Elliot
ed. 1836) 11 (Fisher Ames, in the Massachusetts Convention)
(hereafter cited as "Elliot"); id. at 202 (Oliver Wolcott,
Connecticut); 4 id. at 21 (William Richardson Davie, North
Carolina); id. at 257 (Charles Pinckney, South
Carolina).

															[ Footnote 42 ] Id. at 304

															[ Footnote 43 ]

															"The Times, Places and Manner of holding Elections for Senators
and Representatives, shall be prescribed in each State by the
Legislature thereof; but the Congress may at any time by Law make
or alter such Regulations, except as to the Places of chusing
Senators. . . ."

															U.S.Const., Art. I, § 4.

															[ Footnote 44 ] See 2 Elliot, at 49 (Francis Dana, in the Massachusetts
Convention); id. at 50-51 (Rufus King, Massachusetts); 3 id. at 367 (James Madison, Virginia).

															[ Footnote 45 ]

															4 id. at 71.

															[ Footnote 46 ]

															2 The Works of James Wilson (Andrews ed. 1896) 15.

															[ Footnote 47 ]

															The Federalist, No. 57 (Cooke ed.1961), at 385.

															MR. JUSTICE CLARK, concurring in part and dissenting in
part.

															Unfortunately I can join neither the opinion of the Court nor
the dissent of my Brother HARLAN. It is true that the opening
sentence of Art. I, § 2, of the Constitution provides that
Representatives are to be chosen "by the People of the several
States. . . ." However, in my view, Brother HARLAN has clearly
demonstrated that both the historical background and language
preclude a finding that Art. I, § 2, lays down the ipse
dixit "one person, one vote" in congressional elections.

															On the other hand, I agree with the majority that congressional
districting is subject to judicial scrutiny. This Page 376 U. S. 19 Court has so held ever since Smiley v. Holm, 285 U. S. 355 (1932), which is buttressed by two companion cases, Koenig v.
Flynn, 285 U. S. 375 (1932), and Carroll v. Becker, 285 U.
S. 380 (1932). A majority of the Court in Colegrove
v. Green felt, upon the authority of Smiley, that the
complaint presented a justiciable controversy not reserved
exclusively to Congress. Colegrove v. Green, 328 U.
S. 549 , 328 U. S. 564 ,
and 328 U. S. 568 ,
n. 3 (1946). Again, in Baker v. Carr, 369 U.
S. 186 , 369 U.S.
232 (1962), the opinion of the Court recognized that Smiley "settled the issue in favor of justiciability of
questions of congressional redistricting." I therefore cannot agree
with Brother HARLAN that the supervisory power granted to Congress
under Art. I, § 4, is the exclusive remedy.

															I would examine the Georgia congressional districts against the
requirements of the Equal Protection Clause of the Fourteenth
Amendment. As my Brother BLACK said in his dissent in Colegrove
v. Green, supra, the

															"equal protection clause of the Fourteenth Amendment forbids . .
. discrimination. It does not permit the States to pick out certain
qualified citizens or groups of citizens and deny them the right to
vote at all. . . . No one would deny that the equal protection
clause would also prohibit a law that would expressly give certain
citizens a half-vote and others a full vote. . . . Such
discriminatory legislation seems to me exactly the kind that the
equal protection clause was intended to prohibit."

															At 329 U. S.
569 .

															The trial court, however, did not pass upon the merits of the
case, although it does appear that it did make a finding that the
Fifth District of Georgia was "grossly out of balance" with other
congressional districts of the State. Instead of proceeding on the
merits, the court dismissed the case for lack of equity. I believe
that the court erred in so doing. In my view, we should therefore
vacate this judgment and remand the case for a hearing Page 376 U. S. 20 on the merits. At that hearing, the court should apply the
standards laid down in Baker v. Carr, supra. I would enter an additional caveat. The General Assembly of the
Georgia Legislature has been recently reapportioned * as a result of the
order of the three-judge District Court in Toombs v.
Fortson, 205 F.
Supp. 248 (1962). In addition, the Assembly has created a Joint
Congressional Redistricting Study Committee which has been working
on the problem of congressional redistricting for several months.
The General Assembly is currently in session. If, on remand, the
trial court is of the opinion that there is likelihood of the
General Assembly's reapportioning the State in an appropriate
manner, I believe that coercive relief should be deferred until
after the General Assembly has had such an opportunity.

															* Georgia Laws, Sept.-Oct. 1962, Extra.Sess. 71.

															MR. JUSTICE HARLAN, dissenting.

															I had not expected to witness the day when the Supreme Court of
the United States would render a decision which casts grave doubt
on the constitutionality of the composition of the House of
Representatives. It is not an exaggeration to say that such is the
effect of today's decision. The Court's holding that the
Constitution requires States to select Representatives either by
elections at large or by elections in districts composed "as nearly
as is practicable" of equal population places in jeopardy the seats
of almost all the members of the present House of
Representatives.

															In the last congressional election, in 1962, Representatives
from 42 States were elected from congressional districts. [ Footnote 2/1 ] In all but five of those
States, the difference between Page 376 U. S. 21 the populations of the largest and smallest districts exceeded
100,000 persons. [ Footnote 2/2 ] A
difference of this magnitude in the size of districts, the average
population of which in each State is less than 500,000, [ Footnote 2/3 ] is presumably not equality
among districts "as nearly as is practicable," although the Court
does not reveal its definition of that phrase. [ Footnote 2/4 ] Thus, today's decision impugns the
validity of the election of 398 Representatives from 37 States,
leaving a "constitutional" House of 37 members now sitting.
[ Footnote 2/5 ] Page 376 U. S. 22 Only a demonstration which could not be avoided would justify
this Court in rendering a decision the effect of which,
inescapably, as I see it, is to declare constitutionally defective
the very composition of a coordinate branch of the Federal
Government. The Court's opinion not only fails to make such a
demonstration, it is unsound logically on its face, and
demonstrably unsound historically. I Before coming to grips with the reasoning that carries such
extraordinary consequences, it is important to have firmly in mind
the provisions of Article I of the Constitution which control this
case:

															"Section 2. The House of Representatives shall be composed of
Members chosen every second Year by the People of the several
States, and the Electors in each State shall have the
Qualifications requisite for Electors of the most numerous Branch
of the State Legislature."

															" * * * *" Page 376 U. S. 23 "Representatives and direct Taxes shall be apportioned among the
several States which may be included within this Union, according
to their respective Numbers, which shall be determined by adding to
the whole Number of free Persons, including those bound to Service
for a Term of Years, and excluding Indians not taxed, three fifths
of all other Persons. The actual Enumeration shall be made within
three Years after the first Meeting of the Congress of the United
States, and within every subsequent Term of ten Years, in such
Manner as they shall by Law direct. The Number of Representatives
shall not exceed one for every thirty Thousand, but each State
shall have at Least one Representative. . . ."

															"Section 4. The Times, Places and Manner of holding Elections
for Senators and Representatives, shall be prescribed in each State
by the Legislature thereof; but the Congress may at any time by Law
make or alter such Regulations, except as to the Places of chusing
Senators."

															" * * * *" "Section 5. Each House shall be the Judge of the Elections,
Returns and Qualifications of its own Members. . . ."

															As will be shown, these constitutional provisions and their
"historical context," ante, p. 376 U.S. 7 , establish:

															"1. that congressional Representatives are to be apportioned
among the several States largely, but not entirely, according to
population;"

															"2. that the States have plenary power to select their allotted
Representatives in accordance with any method of popular election
they please, subject only to the supervisory power of Congress;
and"

															"3. that the supervisory power of Congress is exclusive. " Page 376 U. S. 24 In short, in the absence of legislation providing for equal
districts by the Georgia Legislature or by Congress, these
appellants have no right to the judicial relief which they seek. It
goes without saying that it is beyond the province of this Court to
decide whether equally populated districts is the preferable method
for electing Representatives, whether state legislatures would have
acted more fairly or wisely had they adopted such a method, or
whether Congress has been derelict in not requiring state
legislatures to follow that course. Once it is clear that there is
no constitutional right at stake, that ends the case. II Disclaiming all reliance on other provisions of the
Constitution, in particular, those of the Fourteenth Amendment on
which the appellants relied below and in this Court, the Court
holds that the provision in Art. I, § 2, for election of
Representatives "by the People" means that congressional districts
are to be, "as nearly as is practicable," equal in population, ante, pp. 376 U.S.
7 -8. Stripped of rhetoric and a "historical context," ante, p. 376 U.S.
7 , which bears little resemblance to the evidence found in
the pages of history, see infra, pp. 376 U. S. 30 -41,
the Court's opinion supports its holding only with the bland
assertion that "the principle of a House of Representatives elected by the People'" would be "cast aside" if "a vote is worth more
in one district than in another," ante, p. 376 U. S. 8 , i.e., if congressional districts within a State, each
electing a single Representative, are not equal in population . The
fact is, however, that Georgia's 10 Representatives are elected "by
the People" of Georgia, just as Representatives from other States
are elected "by the People of the several States." This is all that
the Constitution requires. [ Footnote
2/6 ] Page 376 U. S. 25 Although the Court finds necessity for its artificial
construction of Article I in the undoubted importance of the right
to vote, that right is not involved in this case. All of the
appellants do vote. The Court's talk about "debasement" and
"dilution" of the vote is a model of circular reasoning, in which
the premises of the argument feed on the conclusion. Moreover, by
focusing exclusively on numbers in disregard of the area and shape
of a congressional district as well as party affiliations within
the district, the Court deals in abstractions which will be
recognized even by the politically unsophisticated to have little
relevance to the realities of political life.

															In any event, the very sentence of Art. I, § 2, on which the
Court exclusively relies, confers the right to vote for
Representatives only on those whom the State has found qualified to
vote for members of "the most numerous Branch of the State
Legislature." Supra, p. 376 U. S. 22 . So
far as Article I is concerned, it is within the State's power to
confer that right only on persons of wealth or of a particular sex
or, if the State chose, living in specified areas of the State.
[ Footnote 2/7 ] Were Georgia to find
the residents of the Page 376 U. S. 26 Fifth District unqualified to vote for Representatives to the
State House of Representatives, they could not vote for
Representatives to Congress, according to the express words of Art.
I, § 2. Other provisions of the Constitution would, of course, be
relevant, but, so far as Art. I, § 2, is concerned, the
disqualification would be within Georgia's power. How can it be,
then, that this very same sentence prevents Georgia from
apportioning its Representatives as it chooses? The truth is that
it does not.

															The Court purports to find support for its position in the third
paragraph of Art. I, § 2, which provides for the apportionment of
Representatives among the States. The appearance of support in that
section derives from the Court's confusion of two issues: direct
election of Representatives within the States and the apportionment
of Representatives among the States. Those issues are distinct, and
were separately treated in the Constitution. The fallacy of the
Court's reasoning in this regard is illustrated by its slide,
obscured by intervening discussion ( see ante pp. 376 U. S. 13 -14),
from the intention of the delegates at the Philadelphia Convention
"that, in allocating Congressmen, the number assigned to each State
should be determined solely by the number of the State's
inhabitants," ante, p. 376 U. S. 13 , to
a "principle solemnly embodied in the Great Compromise -- equal
representation in the House for equal numbers of people," ante, p. 376 U. S. 14 . The
delegates did have the former intention and made clear Page 376 U. S. 27 provision for it. [ Footnote 2/8 ]
Although many, perhaps most, of them also believed generally -- but
assuredly not in the precise, formalistic way of the majority of
the Court [ Footnote 2/9 ] -- that,
within the States, representation should be based on population,
they did not surreptitiously slip their belief into the
Constitution in the phrase "by the People," to be discovered 175
years later like a Shakespearian anagram.

															Far from supporting the Court, the apportionment of
Representatives among the States shows how blindly the Court has
marched to its decision. Representatives were to be apportioned
among the States on the basis of free population plus three-fifths
of the slave population. Since no slave voted, the inclusion of
three-fifths of their number in the basis of apportionment gave the
favored States representation far in excess of their voting
population. If, then, slaves were intended to be without
representation, Article I did exactly what the Court now says it
prohibited: it "weighted" the vote of voters in the slave States.
Alternatively, it might have been thought that Representatives
elected by free men of a State would speak also for the slaves. But
since the slaves added to the representation only of their own
State, Representatives Page 376 U. S. 28 from the slave States could have been thought to speak only for
the slaves of their own States, indicating both that the Convention
believed it possible for a Representative elected by one group to
speak for another nonvoting group and that Representatives were in
large degree still thought of as speaking for the whole population
of a State. [ Footnote 2/10 ]

															There is a further basis for demonstrating the hollowness of the
Court's assertion that Article I requires "one man's vote in a
congressional election . . . to be worth as much as another's," ante, p. 376 U. S. 8 .
Nothing that the Court does today will disturb the fact that,
although in 1960 the population of an average congressional
district was 410,481, [ Footnote
2/11 ] the States of Alaska, Nevada, and Wyoming Page 376 U. S. 29 each have a Representative in Congress, although their
respective populations are 226,167, 285,278, and 330,066. [ Footnote 2/12 ] In entire disregard of
population, Art. I, § 2, guarantees each of these States and every
other State "at Least one Representative." It is whimsical to
assert in the face of this guarantee that an absolute principle of
"equal representation in the House for equal numbers of people" is
"solemnly embodied" in Article I. All that there is is a provision
which bases representation in the House, generally but not
entirely, on the population of the States. The provision for
representation of each State in the House of Representatives is not
a mere exception to the principle framed by the majority; it shows
that no such principle is to be found.

															Finally in this array of hurdles to its decision which the Court
surmounts only by knocking them down is § 4 of Art. I, which states
simply:

															"The Times, Places and Manner of holding Elections for
Senators and Representatives, shall be prescribed in each State by
the Legislature thereof; but the Congress may at any time by Law
make or alter such Regulations, except as to the Places of chusing
Senators."

															(Emphasis added.) The delegates were well aware of the problem
of "rotten boroughs," as material cited by the Court, ante pp. 376 U. S. 14 -15,
and hereafter makes plain. It cannot be supposed that delegates to
the Convention would have labored to establish a principle of equal
representation only to bury it, one would have thought beyond
discovery, in § 2, and omit all mention of it from § 4, which deals
explicitly with the conduct of elections. Section 4 states without
qualification that the state legislatures shall prescribe
regulations for the conduct of elections for Representatives and,
equally without qualification, that Congress may make or Page 376 U. S. 30 alter such regulations. There is nothing to indicate any
limitation whatsoever on this grant of plenary initial and
supervisory power. The Court's holding is,of course, derogatory not
only of the power of the state legislatures, but also of the power
of Congress, both theoretically and as they have actually exercised
their power. See infra, pp. 376 U. S. 42 -45.
[ Footnote 2/13 ] It freezes upon
both, for no reason other than that it seems wise to the majority
of the present Court, a particular political theory for the
selection of Representatives. III .

															There is dubious propriety in turning to the "historical
context" of constitutional provisions which speak so consistently
and plainly. But, as one might expect when the Constitution itself
is free from ambiguity, the surrounding history makes what is
already clear even clearer.

															As the Court repeatedly emphasizes, delegates to the
Philadelphia Convention frequently expressed their view that
representation should be based on population. There were also,
however, many statements favoring limited monarchy and property
qualifications for suffrage and expressions of disapproval for
unrestricted democracy. [ Footnote
2/14 ] Such expressions prove as little on one side of this case
as they do on the other. Whatever the dominant political philosophy
at the Convention, one thing seems clear: it is in the last degree
unlikely that most or even many of the delegates would have
subscribed to the Page 376 U. S. 31 principle of "one person, one vote," ante, p. 376 U. S. 18 .
[ Footnote 2/15 ] Moreover, the
statements approving population-based representation were focused
on the problem of how representation should be apportioned among
the States in the House of Representatives. The Great Compromise
concerned representation of the States in the Congress. In all of
the discussion surrounding the basis of representation of the House
and all of the discussion whether Representatives should be elected
by the legislatures or the people of the States, there is nothing
which suggests Page 376 U. S. 32 even remotely that the delegates had in mind the problem of
districting within a State. [ Footnote
2/16 ]

															The subject of districting within the States is discussed
explicitly with reference to the provisions of Art. I, § 4, which
the Court so pointedly neglects. The Court states:

															"The delegates referred to rotten borough apportionments in some
of the state legislatures as the kind of objectionable governmental
action that the Constitution should not tolerate in the election of
congressional representatives." Ante, p. 376 U. S. 15 . The
remarks of Madison cited by the Court are as follows:

															"The necessity of a Genl. Govt. supposes that the State
Legislatures will sometimes fail or refuse to consult the common
interest at the expense of their local conveniency or prejudices.
The policy of referring the appointment of the House of
Representatives to the people, and not to the Legislatures of the
States, supposes that the result will be somewhat influenced by the
mode, [ sic ] This view of the question seems to decide that
the Legislatures of the States ought not to have the uncontrouled
right of regulating the times places & manner of holding
elections. These were words of great latitude. It was impossible to
foresee all the abuses that might be made of the discretionary
power. Whether the electors should vote by ballot or viva
voce, should assemble at this place or that place, should be
divided into districts or all meet at one place, shd all vote for
all the representatives, or all in a district vote for a number
allotted to the district, these & many other points would
depend on the Legislatures. [ sic ] and might
materially affect the appointments. Page 376 U. S. 33 Whenever the State Legislatures had a favorite measure to carry,
they would take care so to mould their regulations as to favor the
candidates they wished to succeed. Besides, the inequality of the
Representation in the Legislatures of particular States would
produce a like inequality in their representation in the Natl.
Legislature, as it was presumable that the Counties having the
power in the former case would secure it to themselves in the
latter. What danger could there be in giving a controuling
power to the Natl. Legislature? [ Footnote 2/17 ]"

															(Emphasis added.) These remarks of Madison were in response to a
proposal to strike out the provision for congressional supervisory
power over the regulation of elections in Art. I, § 4. Supported by
others at the Convention, [ Footnote
2/18 ] and not contradicted in any respect, they indicate as
clearly as may be that the Convention understood the state
legislatures to have plenary power over the conduct of elections
for Representatives, including the power to district well or badly,
subject only to the supervisory power of Congress. How, then, can
the Court hold that Art. I, § 2, prevents the state legislatures
from districting as they choose? If the Court were correct,
Madison's remarks would have been pointless. One would expect, at
the very least, some reference to Art. I, § 2, as a limiting factor
on the States. This is the "historical context" which the
Convention debates provide.

															Materials supplementary to the debates are as unequivocal. In
the ratifying conventions, there was no suggestion that the
provisions of Art. I, § 2, restricted the power of the States to
prescribe the conduct of elections conferred on them by Art. I, §
4. None of the Court's references Page 376 U. S. 34 to the ratification debates supports the view that the provision
for election of Representatives "by the People" was intended to
have any application to the apportionment of Representatives within
the States; in each instance, the cited passage merely repeats what
the Constitution itself provides: that Representatives were to be
elected by the people of the States. [ Footnote 2/19 ]

															In sharp contrast to this unanimous silence on the issue of this
case when Art. I, § 2, was being discussed, there are repeated
references to apportionment and related problems affecting the
States' selection of Representatives in connection with Art. I, §
4. The debates in the ratifying conventions, as clearly as
Madison's statement at the Philadelphia Convention, supra, pp. 376 U. S. 32 -33,
indicate that, under § 4, the state legislatures, subject only to
the ultimate control of Congress, could district as they chose.

															At the Massachusetts convention, Judge Dana approved § 4 because
it gave Congress power to prevent a state legislature from copying
Great Britain, where

															"a borough of but two or three cottages has a right to send two
representatives to Parliament, while Birmingham, a large
and populous manufacturing town, lately sprung up, cannot send one.
[ Footnote 2/20 ]"

															He noted that the Rhode Island Legislature was "about adopting"
a plan which would Page 376 U. S. 35 "deprive the towns of Newport and Providence of their weight."
[ Footnote 2/21 ] Mr. King noted
the situation in Connecticut, where "Hartford, one of their largest
towns, sends no more delegates than one of their smallest
corporations," and in South Carolina:

															"The back parts of Carolina have increased greatly since the
adoption of their constitution, and have frequently attempted an
alteration of this unequal mode of representation, but the members
from Charleston, having the balance so much in their favor, will
not consent to an alteration, and we see that the delegates from
Carolina in Congress have always been chosen by the delegates of
that city. [ Footnote 2/22 ]"

															King stated that the power of Congress under § 4 was necessary
to "control in this case"; otherwise, he said,

															"The representatives . . . from that state [South Carolina],
will not be chosen by the people, but will be the
representatives of a faction of that state. [ Footnote 2/23 ]"

															Mr. Parsons was as explicit.

															"Mr. PARSONS contended for vesting in Congress the powers
contained in the 4th section [of Art. I], not only as those powers
were necessary for preserving the union, but also for securing to
the people their equal rights of election. . . . [State
legislatures] might make an unequal and partial division of the
states into districts for the election of representatives, or they
might even disqualify one third of the electors. Without these
powers in Congress, the people can have no remedy; but the 4th
section provides a remedy, a controlling power in a legislature,
composed of senators and representatives of twelve states, without
the influence of our commotions and factions, who will hear
impartially, and preserve and restore Page 376 U. S. 36 to the people their equal and sacred rights of election. Perhaps
it then will be objected that, from the supposed opposition of
interests in the federal legislature, they may never agree upon any
regulations; but regulations necessary for the interests of the
people can never be opposed to the interests of either of the
branches of the federal legislature, because that the interests of
the people require that the mutual powers of that legislature
should be preserved unimpaired in order to balance the government.
Indeed, if the Congress could never agree on any regulations, then
certainly no objection to the 4th section can remain; for the
regulations introduced by the state legislatures will be the
governing rule of elections, until Congress can agree upon
alterations. [ Footnote
2/24 ]"

															(Emphasis added.)

															In the New York convention, during the discussion of § 4, Mr.
Jones objected to congressional power to regulate elections because
such power

															"might be so construed as to deprive the states of an essential
right, which, in the true design of the Constitution, was to be
reserved to them. [ Footnote
2/25 ]"

															He proposed a resolution explaining that Congress had such power
only if a state legislature neglected or refused or was unable to
regulate elections itself. [ Footnote
2/26 ] Mr. Smith proposed to add to the resolution

															". . . that each state shall be divided into as many districts
as the representatives it is entitled to, and that each
representative shall be chosen by a majority of votes. [ Footnote 2/27 ]"

															He stated that his proposal was designed to prevent elections at
large, which might result in all the representatives being "taken
from a small part of the state." [ Footnote 2/28 ] Page 376 U. S. 37 He explained further that his proposal was not intended to
impose a requirement on the other States, but "to enable the states
to act their discretion without the control of Congress." [ Footnote 2/29 ] After further discussion
of districting, the proposed resolution was modified to read as
follows:

															"[Resolved] . . . that nothing in this Constitution shall be
construed to prevent the legislature of any state to pass laws,
from time to time, to divide such state into as many convenient
districts as the state shall be entitled to elect representatives
for Congress, nor to prevent such legislature from making
provision, that the electors in each district shall choose a
citizen of the United States, who shall have been an inhabitant of
the district, for the term of one year immediately preceding the
time of his election, for one of the representatives of such state.
[ Footnote 2/30 ]"

															Despite this careful, advertent attention to the problem of
congressional districting, Art. I, § 2, was never mentioned.
Equally significant is the fact that the proposed resolution
expressly empowering the States to establish congressional
districts contains no mention of a requirement that the districts
be equal in population.

															In the Virginia convention, during the discussion of § 4,
Madison again stated unequivocally that he looked solely to that
section to prevent unequal districting:

															". . . [I]t was thought that the regulation of time, place, and
manner, of electing the representatives, should be uniform
throughout the continent. Some states might regulate the elections
on the principles of equality, and others might regulate them
otherwise. This diversity would be obviously unjust. Elections are
regulated now unequally in some states, particularly South
Carolina, with respect to Charleston, Page 376 U. S. 38 which is represented by thirty members. Should the people of any
state by any means be deprived of the right of suffrage, it was
judged proper that it should be remedied by the general government. It was found impossible to fix the time, place, and manner, of
the election of representatives in the Constitution. It was found
necessary to leave the regulation of these, in the first place, to
the state governments, as being best acquainted with the situation
of the people, subject to the control of the general government, in
order to enable it to produce uniformity and prevent its own
dissolution. And, considering the state governments and
general government as distinct bodies, acting in different and
independent capacities for the people, it was thought the
particular regulations should be submitted to the former, and the
general regulations to the latter. Were they exclusively under the
control of the state governments, the general government might
easily be dissolved. But if they be regulated properly by the state
legislatures, the congressional control will very probably never be
exercised. The power appears to me satisfactory, and as unlikely to
be abused as any part of the Constitution. [ Footnote 2/31 ]"

															(Emphasis added.) Despite the apparent fear that § 4 would be
abused, no one suggested that it could safely be deleted because §
2 made it unnecessary.

															In the North Carolina convention, again during discussion of §
4, Mr. Steele pointed out that the state legislatures had the
initial power to regulate elections, and that the North Carolina
legislature would regulate the first election at least "as they
think proper." [ Footnote 2/32 ]
Responding Page 376 U. S. 39 to the suggestion that the Congress would favor the
seacoast, he asserted that the courts would not uphold, nor the
people obey, "laws inconsistent with the Constitution." [ Footnote 2/33 ] (The particular
possibilities that Steele had in mind were apparently that Congress
might attempt to prescribe the qualifications for electors or "to
make the place of elections inconvenient." [ Footnote 2/34 ]) Steele was concerned with the danger of congressional usurpation, under the authority of § 4, of
power belonging to the States. Section 2 was not
mentioned.

															In the Pennsylvania convention, James Wilson described Art. I, §
4, as placing "into the hands of the state legislatures" the power
to regulate elections, but retaining for Congress "self-preserving
power" to make regulations lest "the general government . . . lie
prostrate at the mercy of the legislatures of the several states."
[ Footnote 2/35 ] Without such
power, Wilson stated, the state governments might "make improper
regulations" or "make no regulations at all." [ Footnote 2/36 ] Section 2 was not mentioned.

															Neither of the numbers of The Federalist from which the Court
quotes, ante, pp. 376 U. S. 15 , 376 U. S. 18 ,
fairly supports its holding. In No. 57, Madison merely stated his
assumption that Philadelphia's population would entitle it to two
Representatives in answering the argument that congressional
constituencies would be too large for good government. [ Footnote 2/37 ] In No. 54, he discussed
the inclusion of slaves in the basis of apportionment. He said "It
is agreed on all sides that numbers are the best scale of wealth
and taxation, as they are the only proper scale of representation."
[ Footnote 2/38 ] This statement
was offered simply to show that the slave Page 376 U. S. 40 population could not reasonably be included in the basis of
apportionment of direct taxes and excluded from the basis of
apportionment of representation. Further, on in the same number of
The Federalist, Madison pointed out the fundamental cleavage which
Article I made between apportionment of Representatives among the
States and the selection of Representatives within each State:

															"It is a fundamental principle of the proposed Constitution
that, as the aggregate number of representatives allotted to the
several States is to be determined by a federal rule founded on the
aggregate number of inhabitants, so the right of choosing this
allotted number in each State is to be exercised by such part of
the inhabitants as the State itself may designate. The
qualifications on which the right of suffrage depend are not
perhaps the same in any two States. In some of the States, the
difference is very material. In every State, a certain proportion
of inhabitants are deprived of this right by the Constitution of
the State who will be included in the census by which the Federal
Constitution apportions the representatives. In this point of view,
the southern States might retort the complaint by insisting, that
the principle laid down by the Convention required that no regard
should be had to the policy of particular States towards their own
inhabitants, and consequently that the slaves as inhabitants should
have been admitted into he census according to their full number,
in like manner with other inhabitants, who, by the policy of other
States, are not admitted to all the rights of citizens. [ Footnote 2/39 ]"

															In The Federalist, No. 59, Hamilton discussed the provision of §
4 for regulation of elections. He justified Congress' power with
the "plain proposition, that every Page 376 U. S. 41 government ought to contain, in itself, the means of its own
preservation. " [ Footnote
2/40 ] 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 Federal 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. [ Footnote 2/41 ]"

															(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 Page 376 U. S. 42 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."
[ Footnote 2/42 ] The requirement
was later dropped, [ Footnote
2/43 ] and reinstated. [ Footnote
2/44 ] In 1872, Congress required that Representatives

															"be elected by districts composed of contiguous territory, and
containing as Page 376 U. S. 43 nearly as practicable an equal number of inhabitants, . . . no
one district electing more than one Representative. [ Footnote 2/45 ]"

															This provision for equal districts which the Court exactly
duplicates, in effect, was carried forward in each subsequent
apportionment statute through 1911. [ Footnote 2/46 ] There was no reapportionment following
the 1920 census. The provision for equally populated districts was
dropped in 1929, [ Footnote 2/47 ]
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.
[ Footnote 2/48 ]

															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 reenact
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 287 U. S. 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, [ Footnote 2/49 ] and was
deleted by the House after debate and notice of intention to do so,
[ Footnote 2/50 ] Page 376 U. S. 44 leaves no doubt that the omission was deliberate. The 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. [ Footnote
2/51 ]"

															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.
[ Footnote 2/52 ] Bills which would
have imposed on the States a requirement of equally or nearly
equally populated districts were regularly introduced in the House.
[ Footnote 2/53 ] None of them
became law. Page 376 U. S. 45 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. V .

															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 [ Footnote
2/54 ] 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 protecting Page 376 U. S. 46 the right to vote for a member of Congress from fraud and
violence; the Court relied expressly on Art. I, § 4, in sustaining
this power. Id. at 110 U. S. 660 .
Only in this context, in order to establish that the right to vote
in a congressional election was a right protected by federal law,
did the Court hold that the right was dependent on the Constitution
and not on the law of the States. Indeed, the Court recognized that
the Constitution "adopts the qualification" furnished by the States
"as the qualification of its own electors for members of Congress." Id. at 110 U. S. 663 .
Each of the other three cases cited by the Court, ante, p. 376 U. S. 17 ,
similarly involved acts which were prosecuted as violations of
federal statutes. The acts in question were filing false election
returns, United States v. Mosley, 238 U.
S. 383 , alteration of ballots and false certification of
votes, United States v. Classic, 313 U.
S. 299 , and stuffing the ballot box, United States
v. Saylor, 322 U. S. 385 .
None of those cases has the slightest bearing on the present
situation. [ Footnote 2/55 ] Page 376 U. S. 47 The Court gives scant attention, and that not on the merits, to Colegrove v. Green, 328 U. S. 549 ,
which is directly in point; the Court there affirmed dismissal of a
complaint alleging that,

															"by reason of subsequent changes in population, the
Congressional districts for the election of Representatives in the
Congress created by the Illinois Laws of 1901 . . . lacked
compactness of territory and approximate equality of
population." Id. at 328 U. S.
550 -551. Leaving to another day the question of what Baker v. Carr, 369 U. S. 186 , did
actually decide, it can hardly be maintained on the authority of Baker or anything else, that the Court does not today
invalidate Mr. Justice Frankfurter's eminently correct statement in Colegrove that

															"the Constitution has conferred upon Congress exclusive
authority to secure fair representation by the States in the
popular House. . . . If Congress failed in exercising its powers,
whereby standards of fairness are offended, the remedy ultimately
lies with the people."

															328 U.S. at 328 U. S. 554 .
The problem was described by Mr. Justice Frankfurter as

															"an aspect of government from which the judiciary, in view of
what is involved, has been excluded by the clear intention of the
Constitution. . . ." Ibid. Mr. Justice Frankfurter did not, of course, speak
for a majority of the Court in Colegrove, but refusal for
that reason to give the opinion precedential effect does not
justify refusal to give appropriate attention to the views there
expressed. [ Footnote 2/56 ] Page 376 U. S. 48 VI .

															Today's decision has portents for our society and the Court
itself which should be recognized. This is not a case in which the
Court vindicates the kind of individual rights that are assured by
the Due Process Clause of the Fourteenth Amendment, whose "vague
contours," Rochin v. California, 342 U.
S. 165 , 342 U. S. 170 ,
of course, leave much room for constitutional developments
necessitated by changing conditions in a dynamic society. Nor is
this a case in which an emergent set of facts requires the Court to
frame new principles to protect recognized constitutional rights.
The claim for judicial relief in this case strikes at one of the
fundamental doctrines of our system of government, the separation
of powers. In upholding that claim, the Court attempts to effect
reforms in a field which the Constitution, as plainly as can be,
has committed exclusively to the political process.

															This Court, no less than all other branches of the Government,
is bound by the Constitution. The Constitution does not confer on
the Court blanket authority to step into every situation where the
political branch may be thought to have fallen short. The stability
of this institution ultimately depends not only upon its being
alert to keep the other branches of government within
constitutional bounds, but equally upon recognition of the
limitations on the Court's own functions in the constitutional
system.

															What is done today saps the political process. The promise of
judicial intervention in matters of this sort cannot but encourage
popular inertia in efforts for political reform through the
political process, with the inevitable result that the process is
itself weakened. By yielding to the demand for a judicial remedy in
this instance, the Court, in my view, does a disservice both to
itself and to the broader values of our system of government. Page 376 U. S. 49 Believing that the complaint fails to disclose a constitutional
claim, I would affirm the judgment below dismissing the
complaint.

															[ Footnote 2/1 ]

															Representatives were elected at large in Alabama (8), Alaska
(1), Delaware (1), Hawaii (2), Nevada (1), New Mexico (2), Vermont
(1), and Wyoming (1). In addition, Connecticut, Maryland, Michigan,
Ohio, and Texas each elected one of their Representatives at
large.

															[ Footnote 2/2 ]

															The five States are Iowa, Maine, New Hampshire, North Dakota,
and Rhode Island. Together, they elect 15 Representatives.

															The populations of the largest and smallest districts in each
State and the difference between them are contained in an 376 U.S.
1 app|>Appendix to this opinion.

															[ Footnote 2/3 ]

															The only State in which the average population per district is
greater than 500,000 is Connecticut, where the average population
per district is 507,047 (one Representative being elected at
large). The difference between the largest and smallest districts
in Connecticut is, however, 370,613.

															[ Footnote 2/4 ]

															The Court's "as nearly as is practicable" formula sweeps a host
of questions under the rug. How great a difference between the
populations of various districts within a State is tolerable? Is
the standard an absolute or relative one, and, if the latter, to
what is the difference in population to be related? Does the number
of districts within the State have any relevance? Is the number of
voters or the number of inhabitants controlling? Is the relevant
statistic the greatest disparity between any two districts in the
State, or the average departure from the average population per
district, or a little of both? May the State consider factors such
as area or natural boundaries (rivers, mountain ranges) which are
plainly relevant to the practicability of effective
representation?

															There is an obvious lack of criteria for answering questions
such as these, which points up the impropriety of the Court's
wholehearted but heavy-footed entrance into the political
arena.

															[ Footnote 2/5 ]

															The 37 "constitutional" Representatives are those coming from
the eight States which elected their Representatives at large (plus
one each elected at large in Connecticut, Maryland, Michigan, Ohio,
and Texas) and those coming from States in which the difference
between the populations of the largest and smallest districts was
less than 100,000. See notes 376 U.S.
1 fn2/1|>1 and 376 U.S.
1 fn2/2|>2, supra. Since the difference between the
largest and smallest districts in Iowa is 89,250, and the average
population per district in Iowa is only 393,934, Iowa's 7
Representatives might well lose their seats as well. This would
leave a House of Representatives composed of the 22 Representatives
elected at large plus eight elected in congressional districts.

															These conclusions presume that all the Representatives from a
State in which any part of the congressional districting is found
invalid would be affected. Some of them, of course, would
ordinarily come from districts the populations of which were about
that which would result from an apportionment based solely on
population. But a court cannot erase only the districts which do
not conform to the standard announced today, since invalidation of
those districts would require that the lines of all the districts
within the State be redrawn. In the absence of a reapportionment, all the Representatives from a State found to have
violated the standard would presumably have to be elected at
large.

															[ Footnote 2/6 ]

															Since I believe that the Constitution expressly provides that
state legislatures and the Congress shall have exclusive
jurisdiction over problems of congressional apportionment of the
kind involved in this case, there is no occasion for me to consider
whether, in the absence of such provision, other provisions of the
Constitution, relied on by the appellants, would confer on them the
rights which they assert.

															[ Footnote 2/7 ]

															Although it was held in Ex parte Yarbrough, 110 U. S. 651 , and
subsequent cases, that the right to vote for a member of Congress
depends on the Constitution, the opinion noted that the
legislatures of the States prescribe the qualifications for
electors of the legislatures and thereby for electors of the House
of Representatives. 110 U.S. at 110 U. S. 663 . See ante, p. 376 U. S. 17 , and infra, pp. 376 U. S.
45 -46.

															The States which ratified the Constitution exercised their
power. A property or taxpaying qualification was in effect almost
everywhere. See, e.g., the New York Constitution of 1777,
Art. VII, which restricted the vote to freeholders

															"possessing a freehold of the value of twenty pounds, . . . or
[who] have rented a tenement . . . of the yearly value of forty
shillings, and been rated and actually paid taxes to this
State."

															The constitutional and statutory qualifications for electors in
the various States are set out in tabular form in 1 Thorpe, A
Constitutional History of the American People 1776-1850 (1898),
93-96. The progressive elimination of the property qualification is
described in Sait, American Parties and Elections (Penniman ed.,
1952), 16-17. At the time of the Revolution,

															"no serious inroads had yet been made upon the privileges of
property, which, indeed, maintained in most states a second line of
defense in the form of high personal property qualifications
required for membership in the legislature." Id. at 16 (footnote omitted).

															Women were not allowed to vote. Thorpe, op. cit. supra, 93-96. See generally Sait, op. cit. supra, 49-54.
New Jersey apparently allowed women, as "inhabitants," to vote
until 1807. See Thorpe, op. cit. supra, 93. Compare N.J.Const., 1776, Art. XIII, with N.J.Const., 1844, Art. II, � 1.

															[ Footnote 2/8 ]

															Even that is not strictly true unless the word "solely" is
deleted. The "three-fifths compromise" was a departure from the
principle of representation according to the number of inhabitants
of a State. Cf. The Federalist, No. 54, discussed infra pp. 376 U. S. 39 -40.
A more obvious departure was the provision that each State shall
have a Representative regardless of its population. See
infra, pp. 376 U. S.
28 -29.

															[ Footnote 2/9 ]

															The fact that the delegates were able to agree on a Senate
composed entirely without regard to population and on the
departures from a population-based House, mentioned in 376 U.S.
1 fn2/8|>note 8, supra, indicates that they
recognized the possibility that alternative principles, combined
with political reality, might dictate conclusions inconsistent with
an abstract principle of absolute numerical equality.

															On the apportionment of the state legislatures at the time of
the Constitutional Convention, see Luce, Legislative
Principles (1930), 331-364; Hacker, Congressional Districting
(1963), 5.

															[ Footnote 2/10 ]

															It is surely beyond debate that the Constitution did not require
the slave States to apportion their Representatives according to
the dispersion of slaves within their borders. The above
implications of the three-fifths compromise were recognized by
Madison. See The Federalist, No. 54, discussed infra pp. 376 U. S.
39 -40.

															Luce points to the "quite arbitrary grant of representation
proportionate to three fifths of the number of slaves" as evidence
that, even in the House, "the representation of men as men" was not
intended. He states:

															"There can be no shadow of question that populations were
accepted as a measure of material interests -- landed,
agricultural, industrial, commercial, in short, property."

															Legislative Principles (1930), 356-357.

															[ Footnote 2/11 ]

															U.S. Bureau of the Census, Census of Population: 1960
(hereafter, Census), xiv. The figure is obtained by dividing the
population base (which excludes the population of the District of
Columbia, the population of the Territories, and the number of
Indians not taxed) by the number of Representatives. In 1960, the
population base was 178,559,217, and the number of Representatives
was 435.

															[ Footnote 2/12 ]

															Census 1-16.

															[ Footnote 2/13 ]

															Section 5 of Article I, which provides that "Each House shall be
the Judge of the Elections, Returns and Qualifications of its own
Members," also points away from the Court's conclusion. This
provision reinforces the evident constitutional scheme of leaving
to the Congress the protection of federal interests involved in the
selection of members of the Congress.

															[ Footnote 2/14 ]

															I Farrand, Records of the Federal Convention (1911) (hereafter
Farrand), 48, 86-87, 134-136, 288-289, 299, 533, 534; II Farrand
202.

															[ Footnote 2/15 ]

															"The assemblage at the Philadelphia Convention was by no means
committed to popular government, and few of the delegates had
sympathy for the habits or institutions of democracy. Indeed, most
of them interpreted democracy as mob rule, and assumed that
equality of representation would permit the spokesmen for the
common man to outvote the beleaguered deputies of the uncommon
man."

															Hacker, Congressional Districting (1963), 7-8. See Luce, Legislative Principles (1930), 356-357. With respect to
apportionment of the House, Luce states: "Property was the basis,
not humanity." Id. at 357.

															Contrary to the Court's statement, ante, p. 376 U. S. 18 , no
reader of The Federalist "could have fairly taken . . . [it] to
mean" that the Constitutional Convention had adopted a principle of
"one person, one vote" in contravention of the qualifications for
electors which the States imposed. In No. 54, Madison said:

															"It is a fundamental principle of the proposed Constitution
that, as the aggregate number of representatives allotted to the
several States is to be determined by a federal rule founded on the
aggregate number of inhabitants, so the right of choosing this
allotted number in each State is to be exercised by such part of
the inhabitants as the State itself may designate. . . . In
every State, a certain proportion of inhabitants are deprived of
this right by the Constitution of the State, who will be included
in the census by which the Federal Constitution apportions the
representatives."

															(Cooke ed.1961) 369. (Italics added.) The passage from which the
Court quotes, ante, p. 376 U. S. 18 ,
concludes with the following, overlooked by the Court:

															"They [the electors] are to be the same who exercise the right
in every State of electing the correspondent branch of the
Legislature of the State." Id. at 385.

															[ Footnote 2/16 ]

															References to Old Sarum ( ante, p. 376 U. S. 15 ),
for example, occurred during the debate on the method of
apportionment of Representatives among the States. I
Farrand 449-450, 457.

															[ Footnote 2/17 ]

															II Farrand 240-241.

															[ Footnote 2/18 ] Ibid. [ Footnote 2/19 ] See the materials cited in notes 41-42 44-45
of the Court's opinion ante, p. 16. Ames' remark at
the Massachusetts convention is typical: "The representatives are
to represent the people." II Elliot's Debates on the Federal
Constitution (2d ed. 1836) (hereafter Elliot's Debates), 11. In the
South Carolina Convention, Pinckney stated that the House would "be
so chosen as to represent in due proportion the people of the
Union. . . ." IV Elliot's Debates 257. But he had in mind only that
other clear provision of the Constitution that representation would
be apportioned among the States according to population. None of
his remarks bears on apportionment within the States. Id. at 256-257.

															[ Footnote 2/20 ]

															II Elliot's Debates 49.

															[ Footnote 2/21 ] Ibid. [ Footnote 2/22 ] Id. at 50-51.

															[ Footnote 2/23 ] Id. at 51.

															[ Footnote 2/24 ] Id. at 26-27

															[ Footnote 2/25 ] Id. 325.

															[ Footnote 2/26 ] Id. at 325-326.

															[ Footnote 2/27 ] Id. at 327.

															[ Footnote 2/28 ] Ibid. [ Footnote 2/29 ] Id. at 328.

															[ Footnote 2/30 ] Id. at 329.

															[ Footnote 2/31 ]

															III Elliot's Debates 367.

															[ Footnote 2/32 ]

															IV Elliot's Debates 71.

															[ Footnote 2/33 ] Ibid. [ Footnote 2/34 ] Ibid. [ Footnote 2/35 ]

															II Elliot's Debates 440-441.

															[ Footnote 2/36 ] Id. at 441.

															[ Footnote 2/37 ]

															The Federalist, No. 57 (Cooke ed.1961), 389.

															[ Footnote 2/38 ] Id. at 368.

															[ Footnote 2/39 ] Id. at 369.

															[ Footnote 2/40 ] Id. at 398.

															[ Footnote 2/41 ] Id. at 398-399.

															[ Footnote 2/42 ]

															Act of June 25, 1842, § 2, 5 Stat. 491.

															[ Footnote 2/43 ]

															Act of May 23, 1850, 9 Stat. 428.

															[ Footnote 2/44 ]

															Act of July 14, 1862, 12 Stat. 572.

															[ Footnote 2/45 ]

															Act of Feb. 2, 1872, § 2, 17 Stat. 28.

															[ Footnote 2/46 ]

															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.

															[ Footnote 2/47 ]

															Act of June 18, 1929, 46 Stat. 21.

															[ Footnote 2/48 ]

															Act of Apr. 25, 1940, 54 Stat. 162; Act of Nov. 15, 1941, 55
Stat. 761.

															[ Footnote 2/49 ]

															H.R. 11725, 70th Cong., 1st Sess., introduced on Mar. 3, 1928,
69 Cong.Rec. 4054.

															[ Footnote 2/50 ]

															70 Cong.Rec. 1499, 1584, 1602, 1604.

															[ Footnote 2/51 ]

															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. [ Footnote 2/52 ] See, e.g., 86 Cong.Rec. 4368 (remarks of Mr. Rankin),
4369 (remarks of Mr. McLeod), 4371 (remarks of Mr. McLeod); 87
Cong.Rec. 1081 (remarks of Mr. Moser).

															[ Footnote 2/53 ]

															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.

															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 percentum from the number obtained by dividing
the total population of such States, as established in the last
decennial 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.

															[ Footnote 2/54 ]

															R.S. § 5508; R.S. § 5520.

															[ Footnote 2/55 ] Smiley v. Holm, 285 U. S. 355 , and
its two companion cases, Koenig v. Flynn, 285 U.
S. 375 ; Carroll v. Becker, 285 U.
S. 380 , on which my Brother CLARK relies in his separate
opinion, ante pp. 376 U. S. 18 -19, are equally irrelevant. Smiley v.
Holm presented two questions: the first, answered in the
negative, was whether the provision in Art. I, § 4, which empowered
the "Legislature" of a State to prescribe the regulations for
congressional elections meant that a State could not by law provide
for a Governor's veto over such regulations as had been prescribed
by the legislature. The second question, which concerned two
congressional apportionment measures, was whether the Act of June
18, 1929, 46 Stat. 21, had repealed certain provisions of the Act
of Aug. 8, 1911, 37 Stat. 13. In answering this question, the Court
was concerned to carry out the intention of Congress in
enacting the 1929 Act. See id. at 376 U. S. 374 .
Quite obviously, therefore, Smiley v. Holm does not stand for the proposition which my Brother CLARK
derives from it. There was not the slightest intimation in that
case that Congress' power to prescribe regulations for elections
was subject to judicial scrutiny, ante, p. 376 U. S. 18 ,
such that this Court could itself prescribe regulations for
congressional elections in disregard, and even in contradiction, of
congressional purpose. The companion cases to Smiley v.
Holm presented no different issues, and were decided wholly on
the basis of the decision in that case.

															[ Footnote 2/56 ]

															The Court relies in part on Baker v. Carr, supra, to
immunize its present decision from the force of Colegrove. But nothing in Baker is contradictory to the view that,
political question and other objections to "justiciability" aside,
the Constitution vests exclusive authority to deal with the problem
of this case in the state legislatures and the Congress.

															| 376 U.S.
1 app| APPENDIX TO OPINION OF MR. JUSTICE HARLAN* Difference Between State and Largest and Number of Largest Smallest Smallest Representatives** District District Districts Alabama (8) . . . . . .

															Alaska (1). . . . . . .

															Arizona (3) . . . . . . 663,510 198,236 465,274

															Arkansas (4). . . . . . 575,385 332,844 242,541

															California (38) . . . . 588,933 301,872 287,061

															Colorado (4). . . . . . 653,954 195,551 458,403

															Connecticut (6) . . . . 689,555 318,942 370,613

															Delaware (1). . . . . .

															Florida (12). . . . . . 660,345 237,235 423,110

															Georgia (10). . . . . . 823,680 272,154 551,526

															Hawaii (2). . . . . . .

															Idaho (2) . . . . . . . 409,949 257,242 152,707

															Illinois (24) . . . . . 552,582 278,703 273,879

															Indiana (11). . . . . . 697,567 290,596 406,971

															Iowa (7). . . . . . . . 442,406 353,156 89,250

															Kansas (5). . . . . . . 539,592 373,583 166,009

															Kentucky (7). . . . . . 610,947 350,839 260,108

															Louisiana (8) . . . . . 536,029 263,850 272,179

															Maine (2) . . . . . . . 505,465 463,800 41,665

															Maryland (8). . . . . . 711,045 243,570 467,475

															Massachusetts (12). . . 478,962 376,336 102,626

															Michigan (19) . . . . . 802,994 177,431 625,563

															Minnesota (8) . . . . . 482,872 375,475 107,397

															Mississippi (5) . . . . 608,441 295,072 313,369 Page 376 U. S. 50 Missouri (10) . . . . . 506,854 378,499 128,355

															Montana (2) . . . . . . 400,573 274,194 126,379

															Nebraska (3). . . . . . 530,507 404,695 125,812

															Nevada (1). . . . . . .

															New Hampshire (2) . . . 331,818 275,103 56,715

															New Jersey (15) . . . . 585,586 255,165 330,421

															New Mexico (2). . . . .

															New York (41) . . . . . 471,001 350,186 120,815

															North Carolina (11) . . 491,461 277,861 213,600

															North Dakota (2). . . . 333,290 299,156 34,134

															Ohio (24) . . . . . . . 726,156 236,288 489,868

															Oklahoma (6). . . . . . 552,863 227,692 325,171

															Oregon (4). . . . . . . 522,813 265,164 257,649

															Pennsylvania (27) . . . 553,154 303,026 250,128

															Rhode Island (2). . . . 459,706 399,782 59,924

															South Carolina (6). . . 531,555 302,235 229,320

															South Dakota (2). . . . 497,669 182,845 314,824

															Tennessee (9) . . . . . 627,019 223,387 403,632

															Texas (23). . . . . . . 951,527 216,371 735,156

															Utah (2). . . . . . . . 572,654 317,973 254,681

															Vermont (1) . . . . . .

															Virginia (10) . . . . . 539,618 312,890 226,728

															Washington (7). . . . . 510,512 342,540 167,972

															West Virginia (5) . . . 422,046 303,098 118,948

															Wisconsin (10). . . . . 530,316 236,870 293,446

															Wyoming (1) . . . . . .

															* The populations of the districts are based on the 1960 Census.
The districts are those used in the election of the current 88th
Congress. The populations of the districts are available in the
biographical section of the Congressional Directory, 88th Cong., 2d
Sess.

															** 435 in all.

															MR. JUSTICE STEWART.

															I think it is established that "this Court has power to afford
relief in a case of this type as against the objection that the
issues are not justiciable,"* and I cannot subscribe to any
possible implication to the contrary which Page 376 U. S. 51 may lurk in MR. JUSTICE HARLAN's dissenting opinion. With this
single qualification, I join the dissent because I think MR.
JUSTICE HARLAN has unanswerably demonstrated that Art. I, § 2, of
the Constitution gives no mandate to this Court or to any court to
ordain that congressional districts within each State must be equal
in population.

															* The quotation is from Mr. Justice Rutledge's concurring
opinion in Colegrove v. Green, 328 U.S. at 328 U. S.
565 .