Did a duplicitous reapportionment case presage blue states?


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Op-ed views and opinions expressed are solely those of the author.

Virginia is blue, so are other states, the red tide is receding, progressivism is crushing the deplorables, or is it?

Looking at a political map of the Old Dominion, red is the dominant color, with blue pockets in Northern Virginia, Richmond, and other populous areas. How can this be, how can a minority of the counties dominate the commonwealth?

Population is part of the answer.

The population of liberal counties has come from immigration from other states where libs seeking to escape high taxation flee to lower-tax states then demand the same costly government programs they fled, that and the growth of the federal government. Next comes immigrants from cultures of dependency where the hand is always out for the next entitlement, assimilation of scant importance and where politicians appeal to diversity at the expense of Americans. Republicans, however, are also complicit, either because they have done little to stop foreign immigration or have catered to real estate interests in the name of development and the dollars they think it will bring them, forgetting that they are soliciting their own extinction. Marx was right about capitalists selling the rope with which they will be hanged. 

But hidden under a legal rock is the truth of political displacement—the arrogance and malfeasance of the Supreme Court in the pernicious decision Reynolds v. Sims (1965).  Reynolds arose when Birmingham voters challenged the Alabama Constitution which gave each county one state senator regardless of population. The court ruled that state legislatures operating on the federal model as they had even before the Constitution, one house by territory, one house by population was unconstitutional as it was not “one man, one vote” thereby violating the equal protection clause of the Fourteenth Amendment. Henceforth, all districts had to be nearly equal in population thereby giving control of the legislature to the most populous areas and depriving the lesser towns and rural areas a significant voice in government. Somehow in all the decades since its passage in 1868 no one had thought that state legislatures violated the fourteenth amendment. That idea never occurred to the amendment’s authors nor to the states that ratified it. In effect, Reynolds denied states “a republican form of government” as guaranteed by the Constitution (Article IV) as understood since the nation’s creation. In his dissent Justice John Marshall Harlan argued the following:

 “…the Equal Protection Clause was never intended to inhibit the States in choosing any democratic method they pleased for the apportionment of their legislatures. This is shown by the language of the Fourteenth Amendment taken as a whole, by the understanding of those who proposed and ratified it, and by the political practices of the States at the time the Amendment was adopted.”  Justice Harlan went on to say “The Court’s elaboration of its new “constitutional” doctrine indicates how far — and how unwisely — it has strayed from the appropriate bounds of its authority. The consequence of today’s decision is that…. the local District Court or, it may be, the state courts, are given blanket authority … to supervise apportionment of the State Legislatures. It is difficult to imagine a more intolerable and inappropriate interference by the judiciary with the independent legislatures of the States. 

The Fourteenth Amendment was concerned with one thing, and one only, ensuring that former slaves were not denied the privileges and immunities of citizens. The Supreme Court, however, finding hitherto unknown rights emanating from the Constitution’s “penumbras” declared American legal history and custom invalid. Legal legerdemain was fully upon us.

Raoul Berger, one of the nation’s most distinguished legal historians, illuminated the fallacy of the court’s reasoning in his seminal Government by Judiciary: The Transformation of the Fourteenth Amendment (1977). In effect, the Court had transformed itself into a super legislature overruling not only original intent, but the will of the people itself in the name of some evanescent “higher law”. Chief Justice Warren was engaging in the logical fallacy of presentism, reading the present into the past.  Wrote Berger: “Warren’s pervasive error…is to substitute twentieth-century logic for the framers’ intentions, so clearly expressed in the legislative history…” but to Warren and those like him the framer’s intent didn’t matter. In the mold of Woodrow Wilson and the “progressives”, then and now, the Constitution was infinitely malleable to get whatever result they wanted. It is that notion of the “living Constitution” which still plagues us.  It has brought forth a judicial oligarchy that by distorting the “equal protection clause,” has erased the 10th Amendment, stripping away the “right of the people” to govern themselves.

Where does that leave us?

Philosophically we are in a deadly contest between those who adhere to the framers’ view of a democratic republic and those who would replace the republic with its antithesis.  If you want to see what an America with the Electoral College would look like Reynolds points the way. Politically Republicans face an uphill struggle against a leftist urban and growing foreign immigrant population whose numbers can dominate state legislatures. With a friendlier Supreme Court in the offing, however, a new legal challenge might overturn Reynolds on the grounds it abolished “a republican form of government.” 

But do the Republicans have the wit or courage to initiate a challenge?

A Republican Congress could curtail judicial powers or introduce a constitutional amendment, but given that the GOP has had that chance more than once and let the opportunity slip, it’s not likely. In Reynolds the Warren Court aborted a “republican form of government,” it will take leaders of great intellect and courage to get it back. Will we ever see them?

William Layer

Lt. Colonel Civil Affairs, USAR (ret) served twenty-six years in the regular and reserve components of the US Army. He was civil military liaison for the 260th Military Police, DC National Guard, State Public Affairs Officer, Commander of the Public Affairs unit and a counter-drug intelligence analyst. Transferring to the 352 Civil Affairs Command as monuments and archives officer, he became the Command Public Affairs Officer in Iraq as well as liaison to local Iraqi leaders and acting Secretary to the General Staff. He was instrumental in recovering photographic artifacts of the Iraqi Royal family while in Baghdad. He was wounded in action in an ambush in Feb. 2004 for which he was awarded the Purple Heart.
In his civilian career he worked primarily in Army Public Affairs and for the Air Force as historian to the presidential wing in the early Reagan administration and later for Air Force Legislative Liaison covering congressional hearings and assisting in preparing testimony for senior leaders.
His essays and reviews have appeared in the scholarly and popular press including Asian Affairs and the Washington Times. He is co-author, with Ali Wahab, of The Iraqi Royal Family, a Collection of Photographs Recovered from The Ruins of the Zuhur Palace, 2004.
A native New Yorker, he holds an honors BA in history from Findlay College (Ohio) and an MA in history from The Ohio State University. He is a graduate of the US Army Command & General Staff College and was graduated with distinction US Naval War College with a MA in National Security and Strategic Studies.

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