Wednesday, August 31, 2011

Correcting Gail Kerr's Distortion of Legal History

Posted By on Wed, Aug 31, 2011 at 7:58 AM

gailkerr.jpg

Democrats and Republicans can disagree over the merits of Gail Kerr's argument in today's Tennessean about possible dismantling of Nashville's 5th District Congressional seat through redistricting. But we can all agree that Kerr's take on the legal history of voting rights needs factual repair.

Kerr writes:

"A landmark 1962 U.S. Supreme Court case, Baker v. Carr, dictates that congressional districts must have the same number of voters. That’s where the phrase 'one man, one vote' came from."

Factually wrong on both counts.

Although the principle of one-person-one vote can be construed as an underlying element of the Baker lawsuit, the issue and the decision were about jurisdiction and standing in voting rights cases pertaining to redistricting. Contrary to Kerr's assertion, the phrase "one man, one vote" appears nowhere in Justice William Brennan's Baker opinion, nor in any of the three concurrences and two dissents. The one concrete discussion of proportionate representation came in Justice Felix Frankfurter's Baker dissent, which rejected it as a historically valid principle:

"The notion that representation proportioned to the geographic spread of population is so universally accepted as a necessary element of equality between man and man that it must be taken to be the standard of a political equality preserved by the Fourteenth Amendment ... is, to put it bluntly, not true."

Baker v. Carr is an important case because it cleared the way for subsequent rulings that did explicitly vindicate the one-person-one-vote idea. The phrase itself almost certainly predates the 1960s by decades (if not centuries), but if there is a clear point of origin in Supreme Court jurisprudence, that might well be the Court's March 1963 opinion (with just one dissent) in the Georgia voting rights case Gray v. Sanders:

"The conception of political equality from the Declaration of Independence, to Lincoln's Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing - one person, one vote."

We now return you to the actual controversy over redistricting the 5th Congressional District seat...

Tags: , , , , ,

Comments (11)

Showing 1-11 of 11

Add a comment

 
Subscribe to this thread:
Showing 1-11 of 11

Add a comment

Most Commented On

All contents © 1995-2014 City Press LLC, 210 12th Ave. S., Ste. 100, Nashville, TN 37203. (615) 244-7989.
All rights reserved. No part of this service may be reproduced in any form without the express written permission of City Press LLC,
except that an individual may download and/or forward articles via email to a reasonable number of recipients for personal, non-commercial purposes.
Powered by Foundation