“‘Equal protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment.’”[1]
In US Constitutional law, the post-Civil War Reconstruction Amendments began to apply the Bill of Rights to the states for the first time, primarily through the Fourteenth Amendment and its Equal Protection Clause. In the Slaughter House Cases and Civil Rights Cases, the Supreme Court essentially halted the application of the Constitution to the states for decades, until “incorporation” of the Bill of Rights began in earnest under Chief Justice Taft. Today, almost 90 years later, almost all of the Bill of Rights applies to state governments except for a few niche provisions about juries and bails. Incorporation took on a new life when former California Governor Earl Warren was appointed Chief Justice by President Eisenhower in 1954. The Warren Court issued a string of major decisions in the area of civil rights. Famously, it called for the end of de jure racial segregation in the Brown v. Board of Education decision. Aiming for a clean sweep, it created the doctrine of “reverse incorporation” using the Fifth Amendment of the Constitution to apply equal protection to the federal government and desegregate school districts in Washington, DC.
In 1962 and 1964 in the famous Baker v. Carr and Reynolds v. Sims decisions, the Warren Court dictated a strict system of “one man, one vote,” with state electoral districts of exactly equal population, using the Equal Protection Clause of the Fourteenth Amendment. The sentiment was heart felt, especially because the State of Alabama at the center of the 1964 Reynolds decision was acting in incredibly discriminatory ways toward its black citizens and doing everything in its power to resist desegregation. Famously, in an earlier case Gomillion v. Lightfoot, Tuskegee, Alabama was redrawn as a 28-side polygon to deny all but four of its 400 black voters the right to the vote, without limiting the voting of any white residents. Perhaps because of this bad behavior, even noted originalist Justice Hugo Black joined the majority in the Reynolds decision. Justice Harlan dissented in that case and in subsequent cases throughout the 1960s, warning that exactly equal population was a bad standard ripe for computerized gerrymandering. Harlan was seemingly correct. With widespread computerization gerrymandering took off in a new form after the 1980s, with merged voter and geographic data used to create carefully crafted districts that favored incumbent majority parties at the state level.
The Equal Protection Clause applied to voting in the vein of Reynolds v. Sims is still good law. It came up in a very controversial way in the 2000 Bush v. Gore decision, where the Supreme Court held that the Florida Supreme Court was giving weight to some Florida voters and not others by ordering a recount.
The Baker and Reynolds have proven destructive for a number of different reasons: (1) involving federal courts and the Department of Justice in state apportionment decisions, (2) opening the door to state-level computerized partisan gerrymandering that reduces competitiveness, and (3) lending Constitutional legitimacy to federal election laws like the 1982 amendments to the Voting Rights Act that go against the meaning of the Fifteenth Amendment.
Setting Constitutional law aside, federal equal protection under the Fifth Amendment is a good idea, even if it is not well supported in the text of the Fifth Amendment. But it is the kind of good idea that would probably be best implemented through a statute or a new constitutional amendment, rather than case law.
Adarand Constructors in 1995 is one of several cases in recent decades that has kept federal equal protection alive. Perhaps the line that begins this article is just dicta—a throwaway line—but if not the existence of two “live” constitutional doctrines, reverse incorporation and one man, one vote, poses a real risk to America’s federal system.
Under Reynolds, the Supreme Court concluded that states could not follow the model of the national government with their own internally federalized and geographically weighted systems. Under an extreme interpretation of these two doctrines, the Supreme Court could effectively deliver a national popular vote or create some type of different weighting of votes in the Senate. In reality, the present Supreme Court and circuit courts are unlikely to do this, but case law or federal statute could more clearly address this unforeseen conflict between the two doctrines.
References
[1] Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 224 (1995).
Comments