Baker v. Carr

No. 6

Argued April 19-20, 1961

Set for reargument May 1, 1961

Reargued October 9, 1961

Decided March 26, 1962

369 U.S. 186

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

Syllabus



Appellants are persons allegedly qualified to vote for members of the

General Assembly of Tennessee representing the counties in which they

reside. They brought suit in a Federal District Court in Tennessee under

42 U.S.C.  1983 and 1988, on behalf of themselves and others similarly

situated, to redress the alleged deprivation of their federal

constitutional rights by legislation classifying voters with respect to

representation in the General Assembly.  They alleged that, by means of

a 1901 statute of Tennessee arbitrarily and capriciously apportioning

the seats in the General Assembly among the State's 95 counties, and a

failure to reapportion them subsequently notwithstanding substantial

growth and redistribution of the State's population, they suffer a

"debasement of their votes," and were thereby denied the equal

protection of the laws guaranteed them by the Fourteenth Amendment. 

They sought, inter alia, a declaratory judgment that the 1901 statute is

unconstitutional and an injunction restraining certain state officers

from conducting any further elections under it.  The District Court

dismissed the complaint on the grounds that it lacked jurisdiction of

the subject matter and that no claim was stated upon which relief could

be granted.



Held:



1. The District Court had jurisdiction of the subject matter of the

federal constitutional claim asserted in the complaint.



2. Appellants had standing to maintain this suit.



3. The complaint's allegations of a denial of equal protection presented

a justiciable constitutional cause of action upon which appellants are

entitled to a trial and a decision.



179 F.Supp. 824, reversed and cause remanded [369 U.S. 187] BRENNAN, J.,

lead opinion



MR. JUSTICE BRENNAN delivered the opinion of the Court.



This civil action was brought under 42 U.S.C.  1983 and 1988 to redress

the alleged deprivation of federal constitutional rights.  The

complaint, alleging that, by means of a 1901 statute of Tennessee

apportioning the members of the General Assembly among the State's 95

counties, "these plaintiffs and others similarly situated, [369 U.S.

188] are denied the equal protection of the laws accorded them by the

Fourteenth Amendment to the Constitution of the United States by virtue

of the debasement of their votes," was dismissed by a three-judge court

convened under 28 U.S.C.  2281 in the Middle District of Tennessee.  The

court held that it lacked jurisdiction of the subject matter and also

that no claim was stated upon which relief could be granted.  179

F.Supp. 824.  We noted probable jurisdiction of the appeal.  364 U.S.

898.  We hold that the dismissal was error, and remand the cause to the

District Court for trial and further proceedings consistent with this

opinion.



The General Assembly of Tennessee consists of the Senate, with 33

members, and the House of Representatives, with 99 members.  The

Tennessee Constitution provides in Art. II as follows:



Sec. 3.  Legislative authority -- Term of office. -- The Legislative

authority of this State shall be vested in a General Assembly, which

shall consist of a Senate and House of Representatives, both dependent

on the people; who shall hold their offices for two years from the day

of the general election.



Sec. 4.  Census. -- An enumeration of the qualified voters, and an

apportionment of the Representatives in the General Assembly, shall be

made in the year one thousand eight hundred and seventy-one and within

every subsequent term of ten years.



Sec. 5.  Apportionment of representatives. -- The number of

Representatives shall, at the several [369 U.S. 189] periods of making

the enumeration, be apportioned among the several counties or districts,

according to the number of qualified voters in each, and shall not

exceed seventy-five; until the population of the State shall be one

million and a half, and shall never exceed ninety-nine; Provided, that

any county having two-thirds of the ratio shall be entitled to one

member.



Sec. 6.  Apportionment of senators. -- The number of Senators shall, at

the several periods of making the enumeration, be apportioned among the

several counties or districts according to the number of qualified

electors in each, and shall not exceed one-third the number of

representatives.  In apportioning the Senators among the different

counties, the fraction that may be lost by any county or counties in the

apportionment of members to the House of Representatives shall be made

up to such county or counties in the Senate, as near as may be

practicable.  When a district is composed of two or more counties, they

shall be adjoining, and no county shall be divided in forming a

district.



Thus, Tennessee's standard for allocating legislative representation

among her counties is the total number of qualified voters resident in

the respective counties, subject only to minor qualifications. 

Decennial reapportionment [369 U.S. 190] in compliance with the

constitutional scheme was effected by the General Assembly each decade

from 1871 to 1901.  The 1871 apportionment was preceded by an 1870

statute requiring an enumeration.  The 1881 apportionment involved three

statutes, the first authorizing an enumeration, the second enlarging the

Senate from 25 to [369 U.S. 191] 33 members and the House from 75 to 99

members, and the third apportioning the membership of both Houses.  In

1891, there were both an enumeration and an apportionment.  In 1901, the

General Assembly abandoned separate enumeration in favor of reliance

upon the Federal Census, and passed the Apportionment Act here in

controversy.  In the more than 60 years since that action, all proposals

in both Houses of the General Assembly for reapportionment have failed

to pass.{10} [369 U.S. 192]



Between 1901 and 1961, Tennessee has experienced substantial growth and

redistribution of her population.  In 1901, the population was

2,020,616, of whom 487,380 were eligible to vote.{11}  The 1960 Federal

Census reports the State's population at 3,567,089, of whom 2,092,891

are eligible to vote.{12}  The relative standings of the counties in

terms of qualified voters have changed significantly.  It is primarily

the continued application of the 1901 Apportionment Act to this shifted

and enlarged voting population which gives rise to the present

controversy.



Indeed, the complaint alleges that the 1901 statute, even as of the time

of its passage, made no apportionment of Representatives and Senators in

accordance with the constitutional formula . . . , but instead

arbitrarily and capriciously apportioned representatives in the Senate

and House without reference . . . to any logical or reasonable formula

whatever.{13} It is further alleged [369 U.S. 193] that, "because of the

population changes since 1900, and the failure of the Legislature to

reapportion itself since 1901," the 1901 statute became

"unconstitutional and obsolete."  Appellants also argue that, because of

the composition of the legislature effected by the 1901 Apportionment

Act, redress in the form of a state constitutional amendment to change

the entire mechanism for reapportioning, or any other change short of

that, is difficult or impossible.{14}  The complaint concludes that

these plaintiffs [369 U.S. 194] and others similarly situated, are

denied the equal protection of the laws accorded them by the Fourteenth

Amendment to the Constitution of the United States by virtue of the

debasement of their votes.{15} They seek a [369 U.S. 195] declaration

that the 1901 statute is unconstitutional and an injunction restraining

the appellees from acting to conduct any further elections under it. 

They also pray that, unless and until the General Assembly enacts a

valid reapportionment, the District Court should either decree a

reapportionment by mathematical application of the Tennessee

constitutional formulae to the most recent Federal Census figures, or

direct the appellees to conduct legislative elections, primary and

general, at large.  They also pray for such other and further relief as

may be appropriate. I THE DISTRICT COURT's OPINION AND ORDER OF

DISMISSAL



Because we deal with this case on appeal from an order of dismissal

granted on appellees' motions, precise identification [369 U.S. 196] of

the issues presently confronting us demands clear exposition of the

grounds upon which the District Court rested in dismissing the case. 

The dismissal order recited that the court sustained the appellees'

grounds "(1) that the Court lacks jurisdiction of the subject matter,

and (2) that the complaint fails to state a claim upon which relief can

be granted. . . ."



In the setting of a case such as this, the recited grounds embrace two

possible reasons for dismissal:



First:  That the facts and injury alleged, the legal bases invoked as

creating the rights and duties relied upon, and the relief sought, fail

to come within that language of Article III of the Constitution and of

the jurisdictional statutes which define those matters concerning which

United States District Courts are empowered to act;



Second:  That, although the matter is cognizable and facts are alleged

which establish infringement of appellants' rights as a result of state

legislative action departing from a federal constitutional standard, the

court will not proceed because the matter is considered unsuited to

judicial inquiry or adjustment.



We treat the first ground of dismissal as "lack of jurisdiction of the

subject matter."  The second we consider to result in a failure to state

a justiciable cause of action.



The District Court's dismissal order recited that it was issued in

conformity with the court's per curiam opinion.  The opinion reveals

that the court rested its dismissal upon lack of subject matter

jurisdiction and lack of a justiciable cause of action without

attempting to distinguish between these grounds.  After noting that the

plaintiffs challenged the existing legislative apportionment in

Tennessee under the Due Process and Equal Protection Clauses, and

summarizing the supporting allegations and the relief requested, the

court stated that



The action is presently before the Court upon the defendants' motion to

dismiss predicated upon three [369 U.S. 197] grounds:  first, that the

Court lacks jurisdiction of the subject matter; second, that the

complaints fail to state a claim upon which relief can be granted, and

third, that indispensable party defendants are not before the Court. 179

F.Supp. at 826.



The court proceeded to explain its action as turning on the case's

presenting a "question of the distribution of political strength for

legislative purposes."  For, From a review of [numerous Supreme Court] .

. . decisions, there can be no doubt that the federal rule, as

enunciated and applied by the Supreme Court, is that the federal courts,

whether from a lack of jurisdiction or from the inappropriateness of the

subject matter for judicial consideration, will not intervene in cases

of this type to compel legislative reapportionment. 179 F.Supp. at 826. 

The court went on to express doubts as to the feasibility of the various

possible remedies sought by the plaintiffs.  179 F.Supp. at 827-828. 

Then it made clear that its dismissal reflected a view not of doubt that

violation of constitutional rights was alleged, but of a court's

impotence to correct that violation: With the plaintiffs' argument that

the legislature of Tennessee is guilty of a clear violation of the state

constitution and of the rights of the plaintiffs the Court entirely

agrees.  It also agrees that the evil is a serious one which should be

corrected without further delay.  But even so, the remedy in this

situation clearly does not lie with the courts.  It has long been

recognized and is accepted doctrine that there are indeed some rights

guaranteed by the Constitution for the violation of which the courts

cannot give redress. 179 F.Supp. at 828.



In light of the District Court's treatment of the case, we hold today

only (a) that the court possessed jurisdiction of the subject matter;

(b) that a justiciable cause of [369 U.S. 198] action is stated upon

which appellants would be entitled to appropriate relief, and (c)

because appellees raise the issue before this Court, that the appellants

have standing to challenge the Tennessee apportionment statutes.{16} 

Beyond noting that we have no cause at this stage to doubt the District

Court will be able to fashion relief if violations of constitutional

rights are found, it is improper now to consider what remedy would be

most appropriate if appellants prevail at the trial. II JURISDICTION OF

THE SUBJECT MATTER



The District Court was uncertain whether our cases withholding federal

judicial relief rested upon a lack of federal jurisdiction or upon the

inappropriateness of the subject matter for judicial consideration --

what we have designated "nonjusticiability."  The distinction between

the two grounds is significant.  In the instance of nonjusticiability,

consideration of the cause is not wholly and immediately foreclosed;

rather, the Court's inquiry necessarily proceeds to the point of

deciding whether the duty asserted can be judicially identified and its

breach judicially determined, and whether protection for the right

asserted can be judicially molded.  In the instance of lack of

jurisdiction, the cause either does not "arise under" the Federal

Constitution, laws or treaties (or fall within one of the other

enumerated categories of Art. III,  2); or is not a "case or

controversy" within the meaning of that section; or the cause is not one

described by any jurisdictional statute.  Our conclusion, see pp. infra,

that this cause presents no nonjusticiable "political question" settles

the only possible doubt that it is a case or controversy.  Under the

present heading of "Jurisdiction [369 U.S. 199] of the Subject Matter,"

we hold only that the matter set forth in the complaint does arise under

the Constitution, and is within 28 U.S.C.  1343.



Article III,  2, of the Federal Constitution provides that



The judicial Power shall extend to all Cases, in Law and Equity, arising

under this Constitution, the Laws of the United States, and Treaties

made, or which shall be made, under their Authority. . . . It is clear

that the cause of action is one which "arises under" the Federal

Constitution.  The complaint alleges that the 1901 statute effects an

apportionment that deprives the appellants of the equal protection of

the laws in violation of the Fourteenth Amendment.  Dismissal of the

complaint upon the ground of lack of jurisdiction of the subject matter

would, therefore, be justified only if that claim were "so attenuated

and unsubstantial as to be absolutely devoid of merit," Newburyport

Water Co. v. Newburyport, 193 U.S. 561, 579, or "frivolous," Bell v.

Hood, 327 U.S. 678, 683.{17}  That the claim is unsubstantial must be

"very plain."  Hart v. Keith Vaudeville Exchange, 262 U.S. 271, 274. 

Since the District Court obviously and correctly did not deem the

asserted federal constitutional claim unsubstantial and frivolous, it

should not have dismissed the complaint for want of jurisdiction of the

subject matter.  And, of course, no further consideration of the merits

of the claim is relevant to a determination of the court's jurisdiction

of the subject matter.  We said in an earlier voting case from

Tennessee: It is obvious . . . that the court, in dismissing for want of

jurisdiction, was controlled by what it deemed to be the want of merit

in the averments which were made in the complaint as to the violation of

the Federal right.  But as the very nature of the controversy was

Federal, and, therefore, [369 U.S. 200] jurisdiction existed, whilst the

opinion of the court as to the want of merit in the cause of action

might have furnished ground for dismissing for that reason, it afforded

no sufficient ground for deciding that the action was not one arising

under the Constitution and laws of the United States. Swafford v.

Templeton, 185 U.S. 487, 493. For it is well settled that the failure to

state a proper cause of action calls for a judgment on the merits, and

not for a dismissal for want of jurisdiction. Bell v. Hood, 327 U.S.

678, 682.  See also Binderup v. Pathe Exchange, 263 U.S. 291, 305-308.



Since the complaint plainly sets forth a case arising under the

Constitution, the subject matter is within the federal judicial power

defined in Art. III,  2, and so within the power of Congress to assign

to the jurisdiction of the District Courts.  Congress has exercised that

power in 28 U.S.C.  1343(3):



The district courts shall have original jurisdiction of any civil action

authorized by law{18} to be commenced by any person . . . [t]o redress

the deprivation, under color of any State law, statute, ordinance,

regulation, custom or usage, of any right, privilege or immunity secured

by the Constitution of the United States. . . .{19} [369 U.S. 201]



An unbroken line of our precedents sustains the federal courts'

jurisdiction of the subject matter of federal constitutional claims of

this nature.  The first cases involved the redistricting of States for

the purpose of electing Representatives to the Federal Congress.  When

the Ohio Supreme Court sustained Ohio legislation against an attack for

repugnancy to Art. I,  4, of the Federal Constitution, we affirmed on

the merits and expressly refused to dismiss for want of jurisdiction "In

view . . . of the subject matter of the controversy and the Federal

characteristics which inhere in it. . . ."  Ohio ex rel. Davis v.

Hildebrant, 241 U.S. 565, 570.  When the Minnesota Supreme Court

affirmed the dismissal of a suit to enjoin the Secretary of State of

Minnesota from acting under Minnesota redistricting legislation, we

reviewed the constitutional merits of the legislation and reversed the

State Supreme Court.  Smiley v. Holm, 285 U.S. 355.  And see companion

cases from the New York Court of Appeals and the Missouri Supreme Court,

Koenig v. Flynn, 285 U.S. 375; Carroll v. Becker, 285 U.S. 380.  When a

three-judge District Court, exercising jurisdiction under the

predecessor of 28 U.S.C.  1343(3), permanently enjoined officers of the

State of Mississippi from conducting an election of Representatives

under a Mississippi redistricting act, we reviewed the federal questions

on the merits and reversed the District Court.  Wood v. Broom, 287 U.S.

1, reversing 1 F.Supp. 134.  A similar decree of a District Court,

exercising jurisdiction under the same statute concerning a Kentucky

redistricting act was [369 U.S. 202] reviewed and the decree reversed. 

Mahan v. Hume, 287 U.S. 575, reversing 1 F.Supp. 142.{20}



The appellees refer to Colegrove v. Green, 328 U.S. 549, as authority

that the District Court lacked jurisdiction of the subject matter. 

Appellees misconceive the holding of that case.  The holding was

precisely contrary to their reading of it.  Seven members of the Court

participated in the decision.  Unlike many other cases in this field

which have assumed without discussion that there was jurisdiction, all

three opinions filed in Colegrove discussed the question.  Two of the

opinions expressing the views of four of the Justices, a majority,

flatly held that there was jurisdiction of the subject matter.  MR.

JUSTICE BLACK, joined by MR. JUSTICE DOUGLAS and Mr. Justice Murphy,

stated:  "It is my judgment that the District Court had jurisdiction . .

. ," citing the predecessor of 28 U.S.C.  1343(3), and Bell v. Hood,

supra. 328 U.S. at 568.  Mr. Justice Rutledge, writing separately,

expressed agreement with this conclusion.  328 U.S. at 564, 565, n. 2. 

Indeed, it is even questionable that the opinion of MR. JUSTICE

FRANKFURTER, joined by Justices Reed and Burton, doubted jurisdiction of

the subject matter.  Such doubt would have been inconsistent with the

professed willingness to turn the decision on either the majority or

concurring views in Wood v. Broom, supra.  328 U.S. at 551.



Several subsequent cases similar to Colegrove have been decided by the

Court in summary per curiam statements.  None was dismissed for want of

jurisdiction of the subject matter.  Cook v. Fortson, 329 U.S. 675;

Turman v. [369 U.S. 203] Duckworth, ibid.; Colegrove v. Barrett, 330

U.S. 804;{21} Tedesco v. Board of Supervisors, 339 U.S. 940; Remmey v.

Smith, 342 U.S. 916; Cox v. Peters, 342 U.S. 936; Anderson v. Jordan,

343 U.S. 912; Kidd v. McCanless, 352 U.S. 920; Radford v. Gary, 352 U.S.

991; Hartsfield v. Sloan, 357 U.S. 916; Matthews v. Handley, 361 U.S.

127.{22}



Two cases decided with opinions after Colegrove likewise plainly imply

that the subject matter of this suit is within District Court

jurisdiction.  In MacDougall v. Green, 335 U.S. 281, the District Court

dismissed for want of jurisdiction, which had been invoked under 28

U.S.C.  1343(3), a suit to enjoin enforcement of the requirement that

nominees for statewide elections be supported by a petition signed by a

minimum number of persons from at least 50 of the State's 102 counties. 

This Court's disagreement with that action is clear, since the Court

affirmed the judgment after a review of the merits and concluded that

the particular claim there was without merit.  In South v. Peters, 339

U.S. 276, we affirmed the dismissal of an attack on the Georgia "county

unit" system but founded our action on a ground that plainly would not

have been reached if the lower court lacked jurisdiction of the subject

matter, which allegedly existed under 28 U.S.C.  1343(3).  The express

words of our holding were that Federal courts consistently refuse to

exercise their equity powers in cases posing [369 U.S. 204] political

issues arising from a state's geographical distribution of electoral

strength among its political subdivisions. 339 U.S. at 277.



We hold that the District Court has jurisdiction of the subject matter

of the federal constitutional claim asserted in the complaint. III

STANDING.



A federal court cannot pronounce any statute, either of a State or of

the United States, void, because irreconcilable with the Constitution,

except as it is called upon to adjudge the legal rights of litigants in

actual controversies. Liverpool Steamship Co. v. Commissioners of

Emigration, 113 U.S. 33, 39.  Have the appellants alleged such a

personal stake in the outcome of the controversy as to assure that

concrete adverseness which sharpens the presentation of issues upon

which the court so largely depends for illumination of difficult

constitutional questions?  This is the gist of the question of standing.

 It is, of course, a question of federal law.



The complaint was filed by residents of Davidson, Hamilton, Knox,

Montgomery, and Shelby Counties.  Each is a person allegedly qualified

to vote for members of the General Assembly representing his county.{23}

 These appellants sued on their own behalf and on behalf of all

qualified voters of their respective counties, and further, on behalf of

all voters of the State of Tennessee who [369 U.S. 205] are similarly

situated. . . .{24} The appellees are the Tennessee Secretary of State,

Attorney General, Coordinator of Elections, and members of the State

Board of Elections; the members of the State Board are sued in their own

right and also as representatives of the County Election Commissioners

whom they appoint.{25} [369 U.S. 206]



We hold that the appellants do have standing to maintain this suit.  Our

decisions plainly support this conclusion.  Many of the cases have

assumed, rather than articulated, the premise in deciding the merits of

similar claims.{26}  And Colegrove v. Green, supra, squarely held that

voters who allege facts showing disadvantage to themselves as

individuals have standing to sue.{27}  A number [369 U.S. 207] of cases

decided after Colegrove recognized the standing of the voters there

involved to bring those actions.{28}



These appellants seek relief in order to protect or vindicate an

interest of their own, and of those similarly situated.  Their

constitutional claim is, in substance, that the 1901 statute constitutes

arbitrary and capricious state action, offensive to the Fourteenth

Amendment in its irrational disregard of the standard of apportionment

prescribed by the State's Constitution or of any standard, effecting a

gross disproportion of representation to voting population.  The injury

which appellants assert is that this classification disfavors the voters

in the counties in which they reside, placing them in a position of

constitutionally unjustifiable inequality vis-a-vis voters [369 U.S.

208] in irrationally favored counties.  A citizen's right to a vote free

of arbitrary impairment by state action has been judicially recognized

as a right secured by the Constitution when such impairment resulted

from dilution by a false tally, cf. United States v. Classic, 313 U.S.

299; or by a refusal to count votes from arbitrarily selected precincts,

cf. United States v. Mosley, 238 U.S. 383, or by a stuffing of the

ballot box, cf. Ex parte Siebold, 100 U.S. 371; United States v. Saylor,

322 U.S. 385.



It would not be necessary to decide whether appellants' allegations of

impairment of their votes by the 1901 apportionment will ultimately

entitle them to any relief in order to hold that they have standing to

seek it.  If such impairment does produce a legally cognizable injury,

they are among those who have sustained it.  They are asserting "a

plain, direct and adequate interest in maintaining the effectiveness of

their votes," Coleman v. Miller, 307 U.S. at 438, not merely a claim of

"the right, possessed by every citizen, to require that the Government

be administered according to law. . . ."  Fairchild v. Hughes, 258 U.S.

126, 129; compare Leser v. Garnett, 258 U.S. 130.  They are entitled to

a hearing and to the District Court's decision on their claims. The very

essence of civil liberty certainly consists in the right of every

individual to claim the protection of the laws, whenever he receives an

injury. Marbury v. Madison, 1 Cranch 137, 163. IV JUSTICIABILITY



In holding that the subject matter of this suit was not justiciable, the

District Court relied on Colegrove v. Green, supra, and subsequent per

curiam cases.{29}  The [369 U.S. 209] court stated: From a review of

these decisions, there can be no doubt that the federal rule . . . is

that the federal courts . . . will not intervene in cases of this type

to compel legislative reapportionment. 179 F.Supp. at 826.  We

understand the District Court to have read the cited cases as compelling

the conclusion that, since the appellants sought to have a legislative

apportionment held unconstitutional, their suit presented a "political

question," and was therefore nonjusticiable.  We hold that this

challenge to an apportionment presents no nonjusticiable "political

question."  The cited cases do not hold the contrary.



Of course, the mere fact that the suit seeks protection of a political

right does not mean it presents a political question.  Such an objection

"is little more than a play upon words."  Nixon v. Herndon, 273 U.S.

536, 540.  Rather, it is argued that apportionment cases, whatever the

actual wording of the complaint, can involve no federal constitutional

right except one resting on the guaranty of a republican form of

government,{30} and that complaints based on that clause have been held

to present political questions which are nonjusticiable.



We hold that the claim pleaded here neither rests upon nor implicates

the Guaranty Clause, and that its justiciability is therefore not

foreclosed by our decisions of cases involving that clause.  The

District Court misinterpreted Colegrove v. Green and other decisions of

this Court on which it relied.  Appellants' claim that they are being

denied equal protection is justiciable, and if [369 U.S. 210]

discrimination is sufficiently shown, the right to relief under the

equal protection clause is not diminished by the fact that the

discrimination relates to political rights. Snowdell v. Hughes, 321 U.S.

1, 11.  To show why we reject the argument based on the Guaranty Clause,

we must examine the authorities under it.  But because there appears to

be some uncertainty as to why those cases did present political

questions, and specifically as to whether this apportionment case is

like those cases, we deem it necessary first to consider the contours of

the "political question" doctrine.



Our discussion, even at the price of extending this opinion, requires

review of a number of political question cases, in order to expose the

attributes of the doctrine -- attributes which, in various settings,

diverge, combine, appear, and disappear in seeming disorderliness. 

Since that review is undertaken solely to demonstrate that neither

singly nor collectively do these cases support a conclusion that this

apportionment case is nonjusticiable, we, of course, do not explore

their implications in other contexts.  That review reveals that, in the

Guaranty Clause cases and in the other "political question" cases, it is

the relationship between the judiciary and the coordinate branches of

the Federal Government, and not the federal judiciary's relationship to

the States, which gives rise to the "political question."  We have said

that, In determining whether a question falls within [the political

question] category, the appropriateness under our system of government

of attributing finality to the action of the political departments and

also the lack of satisfactory criteria for a judicial determination are

dominant considerations. Coleman v. Miller, 307 U.S. 433, 454-455.  The

nonjusticiability of a political question is primarily a function of the

separation of powers.  Much confusion results from the capacity of the

"political question" label to obscure the need for [369 U.S. 211]

case-by-case inquiry.  Deciding whether a matter has in any measure been

committed by the Constitution to another branch of government, or

whether the action of that branch exceeds whatever authority has been

committed, is itself a delicate exercise in constitutional

interpretation, and is a responsibility of this Court as ultimate

interpreter of the Constitution.  To demonstrate this requires no less

than to analyze representative cases and to infer from them the

analytical threads that make up the political question doctrine.  We

shall then show that none of those threads catches this case.



Foreign relations:  there are sweeping statements to the effect that all

questions touching foreign relations are political questions.{31}  Not

only does resolution of such issues frequently turn on standards that

defy judicial application, or involve the exercise of a discretion

demonstrably committed to the executive or legislature,{32} but many

such questions uniquely demand single-voiced statement of the

Government's views.{33}  Yet it is error to suppose that every case or

controversy which touches foreign relations lies beyond judicial

cognizance.  Our cases in this field seem invariably to show a

discriminating analysis of the particular question posed, in terms of

the history of its management by the political branches, of its

susceptibility to judicial handling in the light of its nature and

posture in the specific case, and of the possible consequences [369 U.S.

212] of judicial action.  For example, though a court will not

ordinarily inquire whether a treaty has been terminated, since on that

question, "governmental action . . . must be regarded as of controlling

importance," if there has been no conclusive "governmental action," then

a court can construe a treaty, and may find it provides the answer. 

Compare Terlinden v. Ames, 184 U.S. 270, 285, with Society for the

Propagation of the Gospel in Foreign Parts v. New Haven, 8 Wheat. 464,

492-495.{34}  Though a court will not undertake to construe a treaty in

a manner inconsistent with a subsequent federal statute, no similar

hesitancy obtains if the asserted clash is with state law.  Compare

Whitney v. Robertson, 124 U.S. 190, with Kolovrat v. Oregon, 366 U.S.

187.



While recognition of foreign governments so strongly defies judicial

treatment that, without executive recognition, a foreign state has been

called "a republic of whose existence we know nothing,"{35} and the

judiciary ordinarily follows the executive as to which nation has

sovereignty over disputed territory,{36} once sovereignty over an area

is politically determined and declared, courts may examine the resulting

status and decide independently whether a statute applies to that

area.{37}  Similarly, recognition of belligerency abroad is an executive

responsibility, but if the executive proclamations fall short of an

explicit answer, a court may construe them seeking, for example, to

determine whether the situation is such that statutes designed to assure

American neutrality have [369 U.S. 213] become operative.  The Three

Friends, 166 U.S. 1, 63, 66.  Still again, though it is the executive

that determines a person's status as representative of a foreign

government, Ex parte Hitz, 111 U.S. 766, the executive's statements will

be construed where necessary to determine the court's jurisdiction, In

re Baiz, 135 U.S. 403.  Similar judicial action in the absence of a

recognizedly authoritative executive declaration occurs in cases

involving the immunity from seizure of vessels owned by friendly foreign

governments.  Compare Ex parte Peru, 318 U.S. 578, with Mexico v.

Hoffman, 324 U.S. 30, 34-35.



Dates of duration of hostilities:  though it has been stated broadly

that "the power which declared the necessity is the power to declare its

cessation, and what the cessation requires," Commercial Trust Co. v.

Miller, 262 U.S. 51, 57, here too analysis reveals isolable reasons for

the presence of political questions, underlying this Court's refusal to

review the political departments' determination of when or whether a war

has ended.  Dominant is the need for finality in the political

determination, for emergency's nature demands "[a] prompt and

unhesitating obedience," Martin v. Mott, 12 Wheat. 19, 30 (calling up of

militia).  Moreover, the cessation of hostilities does not necessarily

end the war power.  It was stated in Hamilton v. Kentucky Distilleries &

W. Co., 251 U.S. 146, 161, that the war power includes the power "to

remedy the evils which have arisen from its rise and progress," and

continues during that emergency.  Stewart v. Kahn, 11 Wall. 493, 507.

Fleming v. Mohawk Wrecking Co., 331 U.S. 111, 116.  But deference rests

on reason, not habit.{38}  The question in a particular case may not

seriously implicate considerations of finality -- e.g., a public program

of importance [369 U.S. 214] (rent control), yet not central to the

emergency effort.{39}  Further, clearly definable criteria for decision

may be available.  In such case, the political question barrier falls

away: [A] Court is not at liberty to shut its eyes to an obvious

mistake, when the validity of the law depends upon the truth of what is

declared. . . .  [It can] inquire whether the exigency still existed

upon which the continued operation of the law depended. Chastleton Corp.

v. Sinclair, 264 U.S. 543, 547-548.{40}  Compare Woods v. Miller Co.,

333 U.S. 138.  On the other hand, even in private litigation which

directly implicates no feature of separation of powers, lack of

judicially discoverable standards and the drive for evenhanded

application may impel reference to the political departments'

determination of dates of hostilities' beginning and ending.  The

Protector, 12 Wall. 700.



Validity of enactments:  in Coleman v. Miller, supra, this Court held

that the questions of how long a proposed amendment to the Federal

Constitution remained open to ratification, and what effect a prior

rejection had on a subsequent ratification, were committed to

congressional resolution and involved criteria of decision that

necessarily escaped the judicial grasp.{41}  Similar considerations

apply to the enacting process:  "[t]he respect due to coequal and

independent departments," and the need for finality and certainty about

the status of a statute contribute to judicial reluctance to inquire

whether, as passed, it complied with all requisite formalities.  Field

v. Clark, 143 U.S. 649, 672, 676-677; see Leser v. Garnett, 258 U.S.

130, 137.  But it is not true that courts will never delve [369 U.S.

215] into a legislature's records upon such a quest:  if the enrolled

statute lacks an effective date, a court will not hesitate to seek it in

the legislative journals in order to preserve the enactment.  Gardner v.

The Collector, 6 Wall. 499.  The political question doctrine, a tool for

maintenance of governmental order, will not be so applied as to promote

only disorder.



The status of Indian tribes:  this Court's deference to the political

departments in determining whether Indians are recognized as a tribe,

while it reflects familiar attributes of political questions,{42} United

States v. Holliday, 3 Wall. 407, 419, also has a unique element in that

the relation of the Indians to the United States is marked by peculiar

and cardinal distinctions which exist no where else. . . .  [The Indians

are] domestic dependent nations . . . in a state of pupilage.  Their

relation to the United States resembles that of a ward to his guardian.

The Cherokee Nation v. Georgia, 5 Pet. 1, 16, 17.{43}  Yet here, too,

there is no blanket rule.  While [369 U.S. 216] "It is for [Congress] .

. and not for the courts, to determine when the true interests of the

Indian require his release from [the] condition of tutelage," . . . it

is not meant by this that Congress may bring a community or body of

people within the range of this power by arbitrarily calling them an

Indian tribe. . . . United States v. Sandoval, 231 U.S. 28, 46.  Able to

discern what is "distinctly Indian," ibid., the courts will strike down

[369 U.S. 217] any heedless extension of that label.  They will not

stand impotent before an obvious instance of a manifestly unauthorized

exercise of power.



It is apparent that several formulations which vary slightly according

to the settings in which the questions arise may describe a political

question, although each has one or more elements which identify it as

essentially a function of the separation of powers.  Prominent on the

surface of any case held to involve a political question is found a

textually demonstrable constitutional commitment of the issue to a

coordinate political department; or a lack of judicially discoverable

and manageable standards for resolving it; or the impossibility of

deciding without an initial policy determination of a kind clearly for

non judicial discretion; or the impossibility of a court's undertaking

independent resolution without expressing lack of the respect due

coordinate branches of government; or an unusual need for unquestioning

adherence to a political decision already made; or the potentiality of

embarrassment from multifarious pronouncements by various departments on

one question.



Unless one of these formulations is inextricable from the case at bar,

there should be no dismissal for nonjusticiability on the ground of a

political question's presence.  The doctrine of which we treat is one of

"political questions," not one of "political cases."  The courts cannot

reject as "no law suit" a bona fide controversy as to whether some

action denominated "political" exceeds constitutional authority.  The

cases we have reviewed show the necessity for discriminating inquiry

into the precise facts and posture of the particular case, and the

impossibility of resolution by any semantic cataloguing.



But it is argued that this case shares the characteristics of decisions

that constitute a category not yet considered, cases concerning the

Constitution's guaranty, in Art. IV, [369 U.S. 218]  4, of a republican

form of government.  A conclusion as to whether the case at bar does

present a political question cannot be confidently reached until we have

considered those cases with special care.  We shall discover that

Guaranty Clause claims involve those elements which define a "political

question," and, for that reason and no other, they are nonjusticiable. 

In particular, we shall discover that the nonjusticiability of such

claims has nothing to do with their touching upon matters of state

governmental organization.



Republican form of government:  Luther v. Borden, 7 How. 1, though in

form simply an action for damages for trespass was, as Daniel Webster

said in opening the argument for the defense, "an unusual case."{44} 

The defendants, admitting an otherwise tortious breaking and entering,

sought to justify their action on the ground that they were agents of

the established lawful government of Rhode Island, which State was then

under martial law to defend itself from active insurrection; that the

plaintiff was engaged in that insurrection, and that they entered under

orders to arrest the plaintiff.  The case arose "out of the unfortunate

political differences which agitated the people of Rhode Island in 1841

and 1842," 7 How. at 34, and which had resulted in a situation wherein

two groups laid competing claims to recognition as the lawful

government.{45}  The plaintiff's right to [369 U.S. 219] recover

depended upon which of the two groups was entitled to such recognition;

but the lower court's refusal to receive evidence or hear argument on

that issue, its charge to the jury that the earlier established or

"charter" government was lawful, and the verdict for the defendants were

affirmed upon appeal to this Court.



Chief Justice Taney's opinion for the Court reasoned as follows:  (1) If

a court were to hold the defendants' acts unjustified because the

charter government had no legal existence during the period in question,

it would follow that all of that government's actions -- laws enacted,

taxes collected, salaries paid, accounts settled, sentences passed --

were of no effect, and that "the officers who carried their decisions

into operation [were] answerable as trespassers, if not in some cases as

criminals."{46}  There was, of course, no room for application of any

doctrine of de facto status to uphold prior acts of an officer not

authorized de jure, for such would have defeated the plaintiff's very

action.  A decision for the plaintiff would inevitably have produced

some significant measure of chaos, a consequence to be avoided if it

could be done without abnegation of the judicial duty to uphold the

Constitution.



(2) No state court had recognized as a judicial responsibility

settlement of the issue of the locus of state governmental authority. 

Indeed, the courts of Rhode Island had in several cases held that "it

rested with the political power to decide whether the charter government

had been displaced or not," and that that department had acknowledged no

change. [369 U.S. 220]



(3) Since "[t]he question relates, altogether, to the constitution and

laws of [the] . . . State," the courts of the United States had to

follow the state courts' decisions unless there was a federal

constitutional ground for overturning them.{47}



(4) No provision of the Constitution could be or had been invoked for

this purpose except Art. IV,  4, the Guaranty Clause.  Having already

noted the absence of standards whereby the choice between governments

could be made by a court acting independently, Chief Justice Taney now

found further textual and practical reasons for concluding that, if any

department of the United States was empowered by the Guaranty Clause to

resolve the issue, it was not the judiciary:



Under this article of the Constitution, it rests with Congress to decide

what government is the established one in a State.  For, as the United

States guarantee to each State a republican government, Congress must

necessarily decide what government is established in the State before it

can determine whether it is republican or not.  And when the senators

and representatives of a State are admitted into the councils of the

Union, the authority of the government under which they are appointed,

as well as its republican character, is recognized by the proper

constitutional authority.  And its decision is binding on every other

department of the government, and could not be questioned in a judicial

tribunal.  It is true that the contest in this case did not last long

enough to bring the matter to this issue, and . . . Congress was not

called upon to decide the controversy.  Yet the right to decide is

placed there, and not in the courts. [369 U.S. 221]



So, too, as relates to the clause in the above-mentioned article of the

Constitution, providing for cases of domestic violence.  It rested with

Congress, too, to determine upon the means proper to be adopted to

fulfill this guarantee. . . .  [B]y the act of February 28, 1795,

[Congress] provided, that, in case of an insurrection in any State

against the government thereof, it shall be lawful for the President of

the United States, on application of the legislature of such State or of

the executive (when the legislature cannot be convened), to call forth

such number of the militia of any other State or States, as may be

applied for, as he may judge sufficient to suppress such insurrection.



By this act, the power of deciding whether the exigency had arisen upon

which the government of the United States is bound to interfere is given

to the President. . . .



After the President has acted and called out the militia, is a Circuit

Court of the United States authorized to inquire whether his decision

was right? . . .  If the judicial power extends so far, the guarantee

contained in the Constitution of the United States is a guarantee of

anarchy, and not of order.



It is true that, in this case, the militia were not called out by the

President.  But, upon the application of the governor under the charter

government, the President recognized him as the executive power of the

State and took measures to call out the militia to support his authority

if it should be found necessary for the general government to interfere.

. . .  [C]ertainly no court of the United States, with a knowledge of

this decision, would have been justified in recognizing the opposing

party as the lawful government. . . .  [369 U.S. 222] In the case of

foreign nations, the government acknowledged by the President is always

recognized in the courts of justice. . . . 7 How. at 42-44.



Clearly, several factors were thought by the Court in Luther to make the

question there "political":  the commitment to the other branches of the

decision as to which is the lawful state government; the unambiguous

action by the President in recognizing the charter government as the

lawful authority; the need for finality in the executive's decision, and

the lack of criteria by which a court could determine which form of

government was republican.{48} [369 U.S. 223]



But the only significance that Luther could have for our immediate

purposes is in its holding that the Guaranty Clause is not a repository

of judicially manageable standards which a court could utilize

independently in order to identify a State's lawful government.  The

Court has since refused to resort to the Guaranty Clause -- which alone

had been invoked for the purpose as the source of a constitutional

standard for invalidating state action.  See Taylor & Marshall v.

Beckham (No. 1), 178 U.S. 548 (claim that Kentucky's resolution of

contested gubernatorial election deprived voters of republican

government held nonjusticiable); Pacific States Tel. Co. v. Oregon, 223

U.S. 118 (claim that initiative and referendum negated republican

government held nonjusticiable); Kiernan v. Portland, 223 U.S. 151

(claim that municipal charter amendment per municipal initiative and

referendum negated republican government held nonjusticiable); [369 U.S.

224] Marshall v. Dye, 231 U.S. 250 (claim that Indiana's constitutional

amendment procedure negated republican government held nonjusticiable);

O'Neill v. Leamer, 239 U.S. 244 (claim that delegation to court of power

to form drainage districts negated republican government held "futile");

Ohio ex rel. Davis v. Hildebrant, 241 U.S. 565 (claim that invalidation

of state reapportionment statute per referendum negates republican

government held nonjusticiable);{49} Mountain Timber Co. v. Washington,

243 U.S. 219 (claim that workmen's compensation violates republican

government held nonjusticiable); Ohio ex rel. Bryant v. Akron

Metropolitan Park District, 281 U.S. 74 (claim that rule requiring

invalidation of statute by all but one justice of state court negated

republican government held nonjusticiable); Highland Farms Dairy v.

Agnew, 300 U.S. 608 (claim that delegation to agency of power to control

milk prices violated republican government rejected).



Just as the Court has consistently held that a challenge to state action

based on the Guaranty Clause presents no justiciable question, so has it

held, and for the same reasons, that challenges to congressional action

on the ground of inconsistency with that clause present no justiciable

question.  In Georgia v. Stanton, 6 Wall. 50, the State sought by an

original bill to enjoin execution of the Reconstruction Acts, claiming

that it already possessed "A republican State, in every political,

legal, constitutional, and juridical sense," and that enforcement of the

new Acts, [i]nstead of keeping the guaranty against a forcible overthrow

of its government by foreign invaders or domestic insurgents, . . . is

destroying that very government by force.{50} Congress had clearly

refused to [369 U.S. 225] recognize the republican character of the

government of the suing State.{51}  It seemed to the Court that the only

constitutional claim that could be presented was under the Guaranty

Clause, and Congress having determined that the effects of the recent

hostilities required extraordinary measures to restore governments of a

republican form, this Court refused to interfere with Congress' action

at the behest of a claimant relying on that very guaranty.{52}



In only a few other cases has the Court considered Art. IV,  4, in

relation to congressional action.  It has refused to pass on a claim

relying on the Guaranty Clause to establish that Congress lacked power

to allow the States to employ the referendum in passing on legislation

redistricting for congressional seats.  Ohio ex rel. Davis v.

Hildebrant, supra.  And it has pointed out that Congress is not required

to establish republican government in the territories before they become

States, and before they have attained a sufficient population to warrant

a [369 U.S. 226] popularly elected legislature.  Downes v. Bidwell, 182

U.S. 244, 278-279 (dictum).{53}



We come, finally, to the ultimate inquiry whether our precedents as to

what constitutes a nonjusticiable "political question" bring the case

before us under the umbrella of that doctrine.  A natural beginning is

to note whether any of the common characteristics which we have been

able to identify and label descriptively are present.  We find none: 

the question here is the consistency of state action with the Federal

Constitution.  We have no question decided, or to be decided, by a

political branch of government coequal with this Court.  Nor do we risk

embarrassment of our government abroad, or grave disturbance at home{54}

if we take issue with Tennessee as to the constitutionality of her

action here challenged.  Nor need the appellants, in order to succeed in

this action, ask the Court to enter upon policy determinations for which

judicially manageable standards are lacking.  Judicial standards under

the Equal Protection Clause are well developed and familiar, and it has

been open to courts since the enactment of the Fourteenth Amendment to

determine, if, on the particular facts, they must, that a discrimination

reflects no policy, but simply arbitrary and capricious action.



This case does, in one sense, involve the allocation of political power

within a State, and the appellants [369 U.S. 227] might conceivably have

added a claim under the Guaranty Clause.  Of course, as we have seen,

any reliance on that clause would be futile.  But because any reliance

on the Guaranty Clause could not have succeeded, it does not follow that

appellants may not be heard on the equal protection claim which, in

fact, they tender.  True, it must be clear that the Fourteenth Amendment

claim is not so enmeshed with those political question elements which

render Guaranty Clause claims nonjusticiable as actually to present a

political question itself.  But we have found that not to be the case

here.



In this connection, special attention is due Pacific States Tel. Co. v.

Oregon, 223 U.S. 118.  In that case, a corporation tax statute enacted

by the initiative was attacked ostensibly on three grounds:  (1) due

process; (2) equal protection, and (3) the Guaranty Clause.  But it was

clear that the first two grounds were invoked solely in aid of the

contention that the tax was invalid by reason of its passage: The

defendant company does not contend here that it could not have been

required to pay a license tax.  It does not assert that it was denied an

opportunity to be heard as to the amount for which it was taxed, or that

there was anything inhering in the tax or involved intrinsically in the

law which violated any of its constitutional rights.  If such questions

had been raised, they would have been justiciable, and therefore would

have required the calling into operation of judicial power.  Instead,

however, of doing any of these things, the attack on the statute here

made is of a wholly different character.  Its essentially political

nature is at once made manifest by understanding that the assault which

the contention here advanced makes it [sic] not on the tax as a tax, but

on the State as a State.  It is addressed to the [369 U.S. 228]

framework and political character of the government by which the statute

levying the tax was passed.  It is the government, the political entity,

which (reducing the case to its essence) is called to the bar of this

court not for the purpose of testing judicially some exercise of power

assailed, on the ground that its exertion has injuriously affected the

rights of an individual because of repugnancy to some constitutional

limitation, but to demand of the State that it establish its right to

exist as a State, republican in form. 223 U.S. at



The due process and equal protection claims were held nonjusticiable in

Pacific States not because they happened to be joined with a Guaranty

Clause claim, or because they sought to place before the Court a subject

matter which might conceivably have been dealt with through the Guaranty

Clause, but because the Court believed that they were invoked merely in

verbal aid of the resolution of issues which, in its view, entailed

political questions.  Pacific States may be compared with cases such as

Mountain Timber Co. v. Washington, 243 U.S. 219, wherein the Court

refused to consider whether a workmen's compensation act violated the

Guaranty Clause but considered at length, and rejected, due process and

equal protection arguments advanced against it, and O'Neill v. Leamer,

239 U.S. 244, wherein the Court refused to consider whether Nebraska's

delegation of power to form drainage districts violated the Guaranty

Clause, but went on to consider and reject the contention that the

action against which an injunction was sought was not a taking for a

public purpose.



We conclude, then, that the nonjusticiability of claims resting on the

Guaranty Clause, which arises from their embodiment of questions that

were thought "political," can have no bearing upon the justiciability of

the equal protection claim presented in this case.  Finally, we [369

U.S. 229] emphasize that it is the involvement in Guaranty Clause claims

of the elements thought to define "political questions," and no other

feature, which could render them nonjusticiable.  Specifically, we have

said that such claims are not held nonjusticiable because they touch

matters of state governmental organization.  Brief examination of a few

cases demonstrates this.



When challenges to state action respecting matters of "the

administration of the affairs of the State and the officers through whom

they are conducted"{55} have rested on claims of constitutional

deprivation which are amenable to judicial correction, this Court has

acted upon its view of the merits of the claim.  For example, in Boyd v.

Nebraska ex rel. Thayer, 143 U.S. 135, we reversed the Nebraska Supreme

Court's decision that Nebraska's Governor was not a citizen of the

United States or of the State, and therefore could not continue in

office.  In Kennard v. Louisiana ex rel. Morgan, 92 U.S. 480, and Foster

v. Kansas ex rel. Johnston, 112 U.S. 201, we considered whether persons

had been removed from public office by procedures consistent with the

Fourteenth Amendment's due process guaranty, and held on the merits that

they had.  And only last Term, in Gomillion v. Lightfoot, 364 U.S. 339,

we applied the Fifteenth Amendment to strike down a redrafting of

municipal boundaries which effected a discriminatory impairment of

voting rights, in the face of what a majority of the Court of Appeals

thought to be a sweeping commitment to state legislatures of the power

to draw and redraw such boundaries.{56}



Gomillion was brought by a Negro who had been a resident of the City of

Tuskegee, Alabama, until the municipal boundaries were so recast by the

State Legislature [369 U.S. 230] as to exclude practically all Negroes. 

The plaintiff claimed deprivation of the right to vote in municipal

elections.  The District Court's dismissal for want of jurisdiction and

failure to state a claim upon which relief could be granted was affirmed

by the Court of Appeals.  This Court unanimously reversed.  This Court's

answer to the argument that States enjoyed unrestricted control over

municipal boundaries was: Legislative control of municipalities, no less

than other state power, lies within the scope of relevant limitations

imposed by the United States Constitution. . . .  The opposite

conclusion, urged upon us by respondents, would sanction the achievement

by a State of any impairment of voting rights whatever so long as it was

cloaked in the garb of the realignment of political subdivisions.  "It

is inconceivable that guaranties embedded in the Constitution of the

United States may thus be manipulated out of existence." 364 U.S. at



To a second argument, that Colegrove v. Green, supra, was a barrier to

hearing the merits of the case, the Court responded that Gomillion was

lifted "out of the so-called `political' arena and into the conventional

sphere of constitutional litigation" because here was discriminatory

treatment of a racial minority violating the Fifteenth Amendment. A

statute which is alleged to have worked unconstitutional deprivations of

petitioners' rights is not immune to attack simply because the mechanism

employed by the legislature is a redefinition of municipal boundaries. .

. .  While in form this is merely an act redefining metes and bounds, if

the allegations are established, the inescapable human effect of this

essay in geometry and geography is to despoil colored citizens, and only

colored citizens, of [369 U.S. 231] their theretofore enjoyed voting

rights.  That was not Colegrove v. Green.



When a State exercises power wholly within the domain of state interest,

it is insulated from federal judicial review.  But such insulation is

not carried over when state power is used as an instrument for

circumventing a federally protected right. 364 U.S. at 347.{57}



We have not overlooked such cases as In re Sawyer, 124 U.S. 200, and

Walton v. House of Representatives, 265 U.S. 487, which held that

federal equity power could not be exercised to enjoin a state proceeding

to remove a public officer.  But these decisions explicitly reflect only

a traditional limit upon equity jurisdiction, and not upon federal

courts' power to inquire into matters of state governmental

organization.  This is clear not only from the opinions in those cases,

but also from White v. Berry, 171 U.S. 366, which, relying on Sawyer,

withheld federal equity from staying removal of a federal officer. 

Wilson v. North Carolina, 169 U.S. 586, simply dismissed an appeal from

an unsuccessful suit to upset a State's removal procedure, on the ground

that the constitutional claim presented -- that a jury trial was

necessary if the removal procedure was to comport with due process

requirements -- was frivolous.  Finally, in Taylor and Marshall v.

Beckham (No. 1), 178 U.S. 548, where losing candidates attacked the

constitutionality of Kentucky's resolution of a contested gubernatorial

election, the Court refused to consider the merits of a claim posited

upon [369 U.S. 232] the Guaranty Clause, holding it presented a

political question, but also held on the merits that the ousted

candidates had suffered no deprivation of property without due process

of law.{58}



Since, as has been established, the equal protection claim tendered in

this case does not require decision of any political question, and since

the presence of a matter affecting state government does not render the

case nonjusticiable, it seems appropriate to examine again the reasoning

by which the District Court reached its conclusion that the case was

nonjusticiable.



We have already noted that the District Court's holding that the subject

matter of this complaint was nonjusticiable relied upon Colegrove v.

Green, supra, and later cases.  Some of those concerned the choice of

members of a state legislature, as in this case; others, like Colegrove

itself and earlier precedents, 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.  On the issue of justiciability, all four

Justices comprising a majority relied upon Smiley v. Holm, but, in two

opinions, one for three Justices, 328 U.S. at 566, 568, and a separate

one by Mr. Justice Rutledge, 328 U.S. at 564.  The argument that

congressional redistricting problems presented a "political question"

the resolution of which was confided to Congress might have been rested

upon Art. I,  4, Art. I,  5, Art. I,  2, and Amendment [369 U.S. 233]

XIV,  2.  Mr. Justice Rutledge said: But for the ruling in Smiley v.

Holm, 285 U.S. 355, I should have supposed that the provisions of the

Constitution, Art. I, 4, that "The Times, Places and Manner of holding

Elections for . . . 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 . . ."; Art. I,  2 [but see Amendment XIV, 

2], vesting in Congress the duty of apportionment of representatives

among the several states "according to their respective Numbers," and

Art. I,  5, making each House the sole judge of the qualifications of

its own members, would remove the issues in this case from justiciable

cognizance.  But, in my judgment, the Smiley case rules squarely to the

contrary, save only in the matter of degree. . . .  Assuming that that

decision is to stand, I think . . . that its effect is to rule that this

Court has power to afford relief in a case of this type as against the

objection that the issues are not justiciable. 328 U.S. at  

Accordingly, Mr. Justice Rutledge joined in the conclusion that the case

as justiciable, although he held that the dismissal of the complaint

should be affirmed.  His view was that The shortness of the time

remaining [before forthcoming elections] makes it doubtful whether

action could, or would, be taken in time to secure for petitioners the

effective relief they seek. . . .  I think, therefore, the case is one

in which the Court may properly, and should, decline to exercise its

jurisdiction.  Accordingly, the judgment should be affirmed, and I join

in that disposition of the cause. 328 U.S. at {59} [369 U.S. 234]



Article I,   2, 4, and 5, and Amendment XIV,  2, relate only to

congressional elections, and obviously do not govern apportionment of

state legislatures.  However, our decisions in favor of justiciability

even in light of those provisions plainly afford no support for the

District Court's conclusion that the subject matter of this controversy

presents a political question.  Indeed, the refusal to award relief in

Colegrove resulted only from the controlling view of a want of equity. 

Nor is anything contrary to be found in those per curiams that came

after Colegrove.  This Court dismissed the appeals in Cook v. Fortson

and Turman v. Duckworth, 329 U.S. 675, as moot.  MacDougall v. Green,

335 U.S. 281, held only that, in that case, equity would not act to void

the State's requirement that there be at least a minimum of support for

nominees [369 U.S. 235] for statewide office, over at least a minimal

area of the State.  Problems of timing were critical in Remmey v. Smith,

342 U.S. 916, dismissing for want bf a substantial federal question a

three-judge court's dismissal of the suit as prematurely brought, 102

F.Supp. 708, and in Hartsfield v. Sloan, 357 U.S. 916, denying mandamus

sought to compel the convening of a three-judge court -- movants urged

the Court to advance consideration of their case, [i]nasmuch as the mere

lapse of time before this case can be reached in the normal course of .

. . business may defeat the cause, and inasmuch as the time problem is

due to the inherent nature of the case. . . . South v. Peters, 339 U.S.

276, like Colegrove, appears to be a refusal to exercise equity's

powers; see the statement of the holding quoted, supra,   And Cox v.

Peters, 342 U.S. 936, dismissed for want of a substantial federal

question the appeal from the state court's holding that their primary

elections implicated no "state action."  See 208 Ga. 498, 67 S.E.2d 579.

 But compare Terry v. Adams, 345 U.S. 461.



Tedesco v. Board of Supervisors, 339 U.S. 940, indicates solely that no

substantial federal question was raised by a state court's refusal to

upset the districting of city council seats, especially as it was urged

that there was a rational justification for the challenged districting. 

See 43 So.2d 514.  Similarly, in Anderson v. Jordan, 343 U.S. 912, it

was certain only that the state court had refused to issue a

discretionary writ, original mandamus in the Supreme Court.  That had

been denied without opinion, and, of course, it was urged here that an

adequate state ground barred this Court's review.  And in Kidd v.

McCanless, 200 Tenn. 273, 292 S.W.2d 40, the Supreme Court of Tennessee

held that it could not invalidate the very statute at issue in the case

at bar, but its holding rested on its state law of remedies, i.e., the

state view of [369 U.S. 236] de facto officers,{60} and not on any view

that the norm for legislative apportionment in Tennessee is not numbers

of qualified voters resident in the several counties.  Of course, this

Court was there precluded by the adequate state ground, and, in

dismissing the appeal, 352 U.S. 920, we cited Anderson, supra, as well

as Colegrove.  Nor does the Tennessee court's decision in that case bear

upon this, for, just as in Smith v. Holm, 220 Minn. 486, 19 N.W.2d 914,

and Magraw v. Donovan, 163 F.Supp. 184, 177 F.Supp. 803, a state court's

inability to grant relief does not bar a federal court's assuming

jurisdiction to inquire into alleged deprivation of federal

constitutional rights.  Problems of relief also controlled in Radford v.

Gary, 352 U.S. 991, affirming the District Court's refusal to mandamus

the Governor to call a session of the legislature, to mandamus the

legislature then to apportion, and if they did not comply, to mandamus

the State Supreme Court to do so.  And Matthews v. Handley, 361 U.S.

127, affirmed a refusal to strike down the State's gross income tax

statute -- urged on the ground that the legislature was malapportioned

-- that had rested on the adequacy of available state legal remedies for

suits involving that tax, including challenges to its constitutionality.

 Lastly, Colegrove v. Barrett, 330 U.S. 804, in which Mr. Justice

Rutledge concurred in this Court's refusal to note the appeal from a

dismissal for want of equity, is sufficiently explained by his statement

in Cook v. Fortson, supra: The discretionary exercise or nonexercise of

equitable or declaratory judgment jurisdiction . . . in one case is not

precedent in another case [369 U.S. 237] where the facts differ. 329

U.S. at 678, n. 8.  (Citations omitted.)



We conclude that the complaint's allegations of a denial of equal

protection present a justiciable constitutional cause of action upon

which appellants are entitled to a trial and a decision.  The right

asserted is within the reach of judicial protection under the Fourteenth

Amendment.



The judgment of the District Court is reversed, and the cause is

remanded for further proceedings consistent with this opinion.



Reversed and remanded.



MR. JUSTICE WHITAKER did not participate in the decision of this case.

APPENDIX TO OPINION OF THE COURT



The Tennessee Code Annotated provides for representation in the General

Assembly as follows:



3-101.  Composition -- Counties electing one representative each. -- The

general assembly of the state of Tennessee shall be composed of

thirty-three (33) senators and ninety-nine (99) representatives, to be

apportioned among the qualified voters of the state as follows:  Until

the next enumeration and apportionment of voters each of the following

counties shall elect one (1) representative, to wit:  Bedford, Blount,

Cannon, Carroll, Chester, Cocke Claiborne, Coffee, Crockett, DeKalb,

Dickson, Dyer, Fayette, Franklin, Giles, Greene, Hardeman, Hardin,

Henry, Hickman, Hawkins, Haywood, Jackson, Lake, Lauderdale, Lawrence,

Lincoln, Marion, Marshall, Maury, Monroe, Montgomery, Moore, McMinn,

McNairy, Obion, Overton, Putnam, Roane, Robertson, Rutherford, Sevier,

Smith, Stewart, Sullivan, Sumner, Tipton Warren, Washington, White,

Weakley, Williamson [369 U.S. 238] and Wilson. [Acts 1881 (E.S.), ch. 5,

 1; 1881 (E.S.), ch. 6,  1; 1901, ch. 122,  2; 1907, ch. 178,  1, 2;

1915, ch. 145; Shan.,  123; Acts 1919, ch. 147,  1, 2; 1925 Private, ch.

472,  1; Code 1932,  140; Acts 1935, ch. 150,  1; 1941, ch. 58,  1;

1945, ch. 68,  1; C. Supp. 1950,  140.]



3-102.  Counties electing two representatives each. -- The following

counties shall elect two (2) representatives each, to-wit:  Gibson and

Madison.  [Acts 1901, ch. 122,  3; Shan.,  124; mod.Code 1932,  141.]



3-103.  Counties electing three representatives each. -- The following

counties shall elect three (3) representatives each, to-wit:  Knox and

Hamilton.  [Acts 1901, ch. 122,  4; Shan.,  125; Code 1932,  142.]



3-104.  Davidson County. -- Davidson county shall elect six (6)

representatives.  [Acts 1901, ch. 122,  5; Shan.,  126; Code 1932, 

143.]



3-105.  Shelby county. -- Shelby county shall elect eight (8)

representatives.  Said county shall consist of eight (8) representative

districts, numbered one (1) through eight (8), each district coextensive

with the county, with one (1) representative to be elected from each

district.  [Acts 1901, ch. 122,  6; Shan.,  126a1; Code 1932,  144; Acts

1957, ch. 220,  1; 1959, ch. 213,  1.]



3-106.  Joint representatives. -- The following counties jointly, shall

elect one representative, as follows, to-wit:



First district -- Johnson and Carter.



Second district -- Sullivan and Hawkins.



Third district -- Washington, Greene and Unicoi.



Fourth district -- Jefferson and Hamblen.



Fifth district -- Hancock and Grainer.



Sixth district -- Scott, Campbell, and Union.



Seventh district -- Anderson and Morgan.



Eighth district -- Knox and Loudon. [369 U.S. 239]



Ninth district -- Polk and Bradley.



Tenth district -- Meigs and Rhea.



Eleventh district Cumberland, Bledsoe, Saquatchie, Van Buren and Grundy.



Twelfth district -- Fentress, Pickett, Overton, Clay and Putnam.



Fourteenth district -- Sumner, Trousdale and Macon.



Fifteenth district -- Davidson and Wilson.



Seventeenth district -- Giles, Lewis, Maury and Wayne.



Eighteenth district -- Williamson, Cheatham and Robertson.



Nineteenth district -- Montgomery and Houston.



Twentieth district -- Humphreys and Perry.



Twenty-first district -- Benton and Decatur.



Twenty-second district -- Henry, Weakley and Carroll.



Twenty-third district -- Madison and Henderson.



Twenty-sixth district -- Tipton and Lauderdale.  [Acts 1901, ch. 122, 

7; 1907, ch. 178,  1, 2; 1915, ch. 145,  1, 2; Shan.,  127; Acts 1919,

ch. 147,  1; 1925 Private, ch. 472,  2; Code 1932,  145; Acts 1933, ch.

167, 1; 1935, ch. 150,  2; 1941, ch. 58,  2; 1945, ch. 68,  2; C. Supp.

1950,  145; Acts 1957, ch. 220,  2.]



3-107.  State senatorial districts. -- Until the next enumeration and

apportionment of voters, the following counties shall comprise the

senatorial districts, to-wit:



First district -- Johnson, Carter, Unicoi, Greene, and Washington.



Second district -- Sullivan and Hawkins.



Third district -- Hancock, Morgan, Grainer, Claiborne, Union, Campbell,

and Scott.



Fourth district -- Cocke, Hamblen, Jefferson, Sevier, and Blount.



Fifth district -- Knox.



Sixth district -- Knox, Loudon, Anderson, and Roane [369 U.S. 240]



Seventh district -- McMinn, Bradley, Monroe, and Polk.



Eighth district -- Hamilton.



Ninth district -- Rhea, Meigs, Bledsoe, Sequatchie, Van Buren, White,

and Cumberland.



Tenth district -- Fentress, Pickett, Clay, Overton, Putnam, and Jackson.



Eleventh district -- Marion, Franklin, Grundy and Warren.



Twelfth district -- Rutherford, Cannon, and DeKalb.



Thirteenth district -- Wilson and Smith.



Fourteenth district -- Sumner, Trousdale and Macon.



Fifteenth district -- Montgomery and Robertson.



Sixteenth district -- Davidson.



Seventeenth district -- Davidson.



Eighteenth district -- Bedford, Coffee and Moore.



Nineteenth district -- Lincoln and Marshall.



Twentieth district -- Maury, Perry and Lewis.



Twenty-first district -- Hickman, Williamson and Cheatham.



Twenty-second district -- Giles, Lawrence and Wayne.



Twenty-third district -- Dickson, Humphreys, Houston and Stewart.



Twenty-fourth district -- Henry and Carroll.



Twenty-fifth district -- Madison, Henderson and Chester.



Twenty-sixth district -- Hardeman, McNairy, Hardin, Decatur and Benton.



Twenty-seventh district -- Gibson.



Twenty-eighth district -- Lake, Obion and Weakley.



Twenty-ninth district -- Dyer, Lauderdale and Crockett.



Thirtieth district -- Tipton and Shelby.



Thirty-first district -- Haywood and Fayette.



Thirty-second district -- Shelby [369 U.S. 241]



Thirty-third district -- Shelby.  [Acts 1901, ch. 122,  1; 1907, ch. 3, 

1; Shan.,  128; Code 1932,  146; Acts 1945, ch. 11,  1; C. Supp. 1950, 

146.]



Today's apportionment statute is as enacted in 1901, with minor changes.

 For example:



(1) In 1957, Shelby County was raised from 7 1/2 to 8 representatives.  

Acts of 1957, C. 220.  See also Acts of 1959, c. 213.  The 1957 Act,  2,

abolished the Twenty-seventh Joint Representative District, which had

included Shelby and Fayette Counties.



(2) In 1907, Marion County was given a whole House seat instead of

sharing a joint seat with Franklin County.  Acts of 1907, c. 178.  Acts

of 1915, c. 145, repealed that change, restoring the status quo ante. 

And that reversal was itself reversed, Acts of 1919, c. 147.



(3) James County was in 1901 one of five counties in the Seventh State

Senate District and one of the three in the Ninth House District.  It

appears that James County no longer exists, but we are not advised when

or how it was dissolved.



(4) In 1945, Anderson and Roane Counties were shifted to the Sixth State

Senate District from the Seventh, and Monroe and Polk Counties were

shifted to the Seventh from the Sixth.  Acts of 1945, c. 11. DOUGLAS,

J., concurring



MR. JUSTICE DOUGLAS, concurring.



While I join the opinion of the Court and, like the Court, do not reach

the merits, a word of explanation is necessary.  I put to one side the

problems of "political" [369 U.S. 242] questions involving the

distribution of power between this Court, the Congress, and the Chief

Executive.  We have here a phase of the recurring problem of the

relation of the federal courts to state agencies.  More particularly,

the question is the extent to which a State may weight one person's vote

more heavily than it does another's.



So far as voting rights are concerned, there are large gaps in the

Constitution.  Yet the right to vote is inherent in the republican form

of government envisaged by Article IV, Section 4 of the Constitution. 

The House -- and now the Senate -- are chosen by the people.  The time,

manner, and place of elections of Senators and Representatives are left

to the States (Article I, Section 4, Clause 1; Amendment XVII) subject

to the regulatory power of Congress.  A "republican form" of government

is guaranteed each State by Article IV, Section 4, and each is likewise

promised protection against invasion.  Ibid.  [369 U.S. 243] That the

States may specify the qualifications for voters is implicit in Article

I, Section 2, Clause 1, which provides that the House of Representatives

shall be chosen by the [369 U.S. 244] people and that the Electors

(voters) in each State shall have the Qualifications requisite for

Electors (voters) of the most numerous Branch of the State Legislature.

The same provision, contained in the Seventeenth Amendment, governs the

election of Senators.  Within limits, those qualifications may be fixed

by state law.  See Lassiter v. Northampton Election Board, 360 U.S. 45,

50-51.  Yet, as stated in Ex parte Yarbrough, 110 U.S. 651,  those who

vote for members of Congress do not "owe their right to vote to the

State law in any sense which makes the exercise of the right to depend

exclusively on the law of the State."  The power of Congress to

prescribe the qualifications for voters, and thus override state law, is

not in issue here.  It is, however, clear that, by reason of the

commands of the Constitution, there are several qualifications that a

State may not require.



Race, color, or previous condition of servitude is an impermissible

standard by reason of the Fifteenth Amendment, and that alone is

sufficient to explain Gomillion v. Lightfoot, 364 U.S. 339.  See Taper,

Gomillion versus Lightfoot (1962), pp.12-17.



Sex is another impermissible standard by reason of the Nineteenth

Amendment.



There is a third barrier to a State's freedom in prescribing

qualifications of voters, and that is the Equal Protection Clause of the

Fourteenth Amendment, the provision invoked here.  And so the question

is, may a State weight the vote of one county or one district more

heavily than it weights the vote in another?



The traditional test under the Equal Protection Clause has been whether

a State has made "an invidious discrimination," as it does when it

selects "a particular race or nationality for oppressive treatment." 

See Skinner v. Oklahoma, 316 U.S. 535, 541.  Universal equality is not

[369 U.S. 245] the test; there is room for weighting.  As we stated in

Williamson v. Lee Optical Co., 348 U.S. 483, 489, "The prohibition of

the Equal Protection Clause goes no further than the invidious

discrimination."



I agree with my Brother CLARK that, if the allegations in the complaint

can be sustained, a case for relief is established.  We are told that a

single vote in Moore County, Tennessee, is worth 19 votes in Hamilton

County, that one vote in Stewart or in Chester County is worth nearly

eight times a single vote in Shelby or Knox County.  The opportunity to

prove that an "invidious discrimination" exists should therefore be

given the appellants.



It is said that any decision in cases of this kind is beyond the

competence of courts.  Some make the same point as regards the problem

of equal protection in cases involving racial segregation.  Yet the

legality of claims and conduct is a traditional subject for judicial

determination.  Adjudication is often perplexing and complicated.  An

example of the extreme complexity of the task can be seen in a decree

apportioning water among the several States.  Nebraska v. Wyoming, 325

U.S. 589, 665.  The constitutional guide is often vague, as the

decisions under the Due Process and Commerce Clauses show.  The problem

under the Equal Protection Clause is no more intricate.  See Lewis,

Legislative Apportionment and the Federal Courts, 71 Harv.L.Rev. 1057,

1083-1084.



There are, of course, some questions beyond judicial competence.  Where

the performance of a "duty" is left to the discretion and good judgment

of an executive officer, the judiciary will not compel the exercise of

his discretion one way or the other (Kentucky v. Dennison, 24 How. 66,

109), for to do so would be to take over the office.  Cf. Federal

Communications Comm'n. v. Broadcasting Co., 309 U.S. 134, 145. [369 U.S.

246]



Where the Constitution assigns a particular function wholly and

indivisibly to another department, the federal judiciary does not

intervene.  Oetjen v. Central Leather Co., 246 U.S. 297, 302.  None of

those cases is relevant here. [369 U.S. 247]



There is no doubt that the federal courts have jurisdiction of

controversies concerning voting rights.  The Civil Rights Act gives them

authority to redress the deprivation "under color of any State law" of

any "right, privilege or immunity secured by the Constitution of the

United States or by any Act of Congress providing for equal rights of

citizens. . . ."  28 U.S.C.  1343(3).  And 28 U.S.C.  1343(4) gives the

federal courts authority to award damages or issue an injunction to

redress the violation of "any Act of Congress providing for the

protection of civil rights, including the right to vote."  (Italics

added.)  The element of state action covers a wide range.  For, as

stated in United States v. Classic, 313 U.S. 299, 326: Misuse of power,

possessed by virtue of state law and made possible only because the

wrongdoer is clothed with the authority of state law, is action taken

"under color of" state law. And see Monroe v. Pape, 365 U.S. 167.



The right to vote in both federal and state elections was protected by

the judiciary long before that right received the explicit protection it

is now accorded by  1343(4).  Discrimination against a voter on account

of race has been penalized (Ex parte Yarbrough, 110 U.S. 651) or struck

down.  Nixon v. Herndon, 273 U.S. 536; Smith v. Allwright, 321 U.S. 649;

Terry v. Adams, 345 U.S. 461.  Fraudulent acts that dilute the votes of

some [369 U.S. 248] have long been held to be within judicial

cognizance.  Ex parte Siebold, 100 U.S. 371.  The "right to have one's

vote counted" whatever his race or nationality or creed was held in

United States v. Mosley, 238 U.S. 383, 386, to be "as open to protection

by Congress as the right to put a ballot in a box."  See also United

States v. Classic, supra,  United States v. Saylor, 322 U.S. 385.



Chief Justice Holt stated in Ashby v. White, 2 Ld.Raym. 938, 956 (a suit

in which damages were awarded against election officials for not

accepting the plaintiff's vote, 3 Ld.Raym. 320) that: To allow this

action will make publick officers more careful to observe the

constitution of cities and boroughs, and not to be so partial as they

commonly are in all elections, which is indeed a great and growing

mischief, and tends to the prejudice of the peace of the nation.



The same prophylactic effect will be produced here, as entrenched

political regimes make other relief as illusory in this case as a

petition to Parliament in Ashby v. White would have been. [369 U.S. 249]



Intrusion of the Federal Government into the election machinery of the

States has taken numerous forms -- investigations (Hannah v. Larche, 363

U.S. 420); criminal proceedings (Ex parte Siebold, supra; Ex parte

Yarbrough, supra; United States v. Mosley, supra; United States v.

Classic, supra); collection of penalties (Smith v. Allwright, supra);

suits for declaratory relief and for an injunction (Terry v. Adams,

supra); suits by the United States under the Civil Rights Act to enjoin

discriminatory practices.  United States v. Raines, 362 U.S. 17.



As stated by Judge McLaughlin in Dyer v. Kazuhisa Abe, 138 F.Supp. 220,

236 (an apportionment case in Hawaii which was reversed and dismissed as

moot, 256 F.2d 728): The whole thrust of today's legal climate is to end

unconstitutional discrimination.  It is ludicrous to preclude judicial

relief when a mainspring of representative government is impaired. 

Legislators have no immunity from the Constitution.  The legislatures of

our land should be made as responsive to the Constitution of the United

States as are the citizens who elect the legislators.



With the exceptions of Colegrove v. Green, 328 U.S. 549; MacDougall v.

Green, 335 U.S. 281; South v. Peters, 339 U.S. 276, and the decisions

they spawned, the Court has never thought that protection of voting

rights [369 U.S. 250] was beyond judicial cognizance.  Today's treatment

of those cases removes the only impediment to judicial cognizance of the

claims stated in the present complaint.



The justiciability of the present claims being established, any relief

accorded can be fashioned in the light of well known principles of

equity. [369 U.S. 251] CLARK, J., concurring



MR. JUSTICE CLARK, concurring.



One emerging from the rash of opinions with their accompanying clashing

of views may well find himself suffering a mental blindness.  The Court

holds that the appellants have alleged a cause of action.  However, it

refuses to award relief here -- although the facts are undisputed -- and

fails to give the District Court any guidance whatever.  One dissenting

opinion, bursting with words that go through so much and conclude with

so little, contemns the majority action as "a massive repudiation of the

experience of our whole past."  Another describes the complaint as

merely asserting conclusory allegations that Tennessee's apportionment

is "incorrect," "arbitrary," "obsolete," and "unconstitutional."  I

believe it can be shown that this case is distinguishable from earlier

cases dealing with the distribution of political power by a State, that

a patent violation of the Equal Protection Clause of the United States

Constitution has been shown, and that an appropriate remedy may be

formulated. I



I take the law of the case from MacDougall v. Green, 335 U.S. 281

(1948), which involved an attack under the Equal Protection Clause upon

an Illinois election statute.  The Court decided that case on its merits

without hindrance from the "political question" doctrine.  Although the

statute under attack was upheld, it is clear [369 U.S. 252] that the

Court based its decision upon the determination that the statute

represented a rational state policy.  It stated: It would be strange

indeed, and doctrinaire, for this Court, applying such broad

constitutional concepts as due process and equal protection of the laws,

to deny a State the power to assure a proper diffusion of political

initiative as between its thinly populated counties and those having

concentrated masses, in view of the fact that the latter have practical

opportunities for exerting their political weight at the polls not

available to the former. Id. at 284. (Emphasis supplied.)



The other cases upon which my Brethren dwell are all distinguishable or

inapposite.  The widely heralded case of Colegrove v. Green, 328 U.S.

549 (1946), was one not only in which the Court was bobtailed, but in

which there was no majority opinion.  Indeed, even the "political

question point" in MR. JUSTICE FRANKFURTER's opinion was no more than an

alternative ground.  Moreover, the appellants did not present an equal

protection argument.  While it has served as a Mother Hubbard to most of

the subsequent cases, I feel it was in that respect ill-cast, and, for

all of these reasons, put it to one side.  Likewise, [369 U.S. 253] I do

not consider the Guaranty Clause cases based on Art. I,  4, of the

Constitution, because it is not invoked here and it involves different

criteria, as the Court's opinion indicates.  Cases resting on various

other considerations not present here, such as Radford v. Gary, 352 U.S.

991 (1957) (lack of equity); Kidd v. McCanless, 352 U.S. 920 (1956)

(adequate state grounds supporting the state judgment); Anderson v.

Jordan, 343 U.S. 912 (1952) (adequate state grounds); Remmey v. Smith,

342 U.S. 916 (1952) (failure to exhaust state procedures), are, of

course, not controlling.  Finally, the Georgia county unit system cases,

such as South v. Peters, 339 U.S. 276 (1950), reflect the viewpoint of

MacDougall, i.e., to refrain from intervening where there is some

rational policy behind the State's system. II



The controlling facts cannot be disputed.  It appears from the record

that 37% of the voters of Tennessee elect 20 of the 33 Senators, while

40% of the voters elect 63 of the 99 members of the House.  But this

might not, on its face, be an "invidious discrimination," Williamson v.

Lee Optical of Oklahoma, 348 U.S. 483, 489 (1955), for a "statutory

discrimination will not be set aside if any state of facts reasonably

may be conceived to justify it."  McGowan v. Maryland, 366 U.S. 420, 426

(1961).



It is true that the apportionment policy incorporated in Tennessee's

Constitution, i.e., statewide numerical equality of representation with

certain minor qualifications, is a rational one.  On a county-by-county

comparison [369 U.S. 254] a districting plan based thereon naturally

will have disparities in representation due to the qualifications.  But

this, to my mind, does not raise constitutional problems, for the

overall policy is reasonable.  However, the root of the trouble is not

in Tennessee's Constitution, for admittedly its policy has not been

followed.  The discrimination lies in the action of Tennessee's Assembly

in allocating legislative seats to counties or districts created by it. 

Try as one may, Tennessee's apportionment just cannot be made to fit the

pattern cut by its Constitution.  This was the finding of the District

Court.  The policy of the Constitution referred to by the dissenters,

therefore, is of no relevance here.  We must examine what the Assembly

has done.  The frequency and magnitude of the inequalities in the

present districting admit of no policy whatever.  An examination of

Table I accompanying this opinion, post, p. 262, conclusively reveals

that the apportionment picture in Tennessee is a topsy-turvical of

gigantic proportions.  This is not to say that some of the disparity

cannot be explained, but, when the entire table is examined -- comparing

the voting strength of counties of like population as well as

contrasting that of the smaller with the larger counties -- it leaves

but one conclusion, namely that Tennessee's apportionment is a crazy

quilt without rational basis.  At the risk of being accused of picking

out a few of the horribles I shall allude to a series of examples that

are taken from Table I.



As is admitted, there is a wide disparity of voting strength between the

large and small counties.  Some [369 U.S. 255] samples are:  Moore

County has a total representation of two with a population (2,340) of

only one-eleventh of Rutherford County (25,316) with the same

representation; Decatur County (5,563) has the same representation as

Carter (23,303) though the latter has four times the population;

likewise, Loudon County (13,264), Houston (3,084), and Anderson County

(33,990) have the same representation, i.e., 1.25 each.  But it is said

that, in this illustration all of the underrepresented counties contain

municipalities of over 10,000 population, and they therefore should be

included under the "urban" classification, rationalizing this disparity

as an attempt to effect a rural-urban political balance.  But in so

doing, one is caught up in the backlash of his own bull whip, for many

counties have municipalities with a population exceeding 10,000, yet the

same invidious discrimination is present.  For example: County          

           Population  Representation Carter. . . . . . . . . . . . . . 

23,303        1.10 Maury . . . . . . . . . . . . . .  24,556        2.25

Washington. . . . . . . . . . . .  36,967        1.93 Madison . . . . .

. . . . . . . .  37,245        3.50 [369 U.S. 256] Likewise, counties

with no municipality of over 10,000 suffer a similar discrimination:

County                      Population  Representation Grundy. . . . . .

. . . . . . . .   6,540        O.95 Chester . . . . . . . . . . . . .  

6,391        2.00 Cumberland. . . . . . . . . . . .   9,593        O.63

Crockett. . . . . . . . . . . . .   9,676        2.00 Loudon. . . . . .

. . . . . . . .  13,264        1.25 Fayette. . . . . . . . . . . . . .

13,577        2.50 This could not be an effort to attain political

balance between rural and urban populations.  Since discrimination is

present among counties of like population, the plan is neither

consistent nor rational.  It discriminates horizontally creating gross

disparities between rural areas themselves as well as between urban

areas themselves, still maintaining the wide vertical disparity already

pointed out between rural and urban.



It is also insisted that the representation formula used above (see n.

7) is "patently deficient" because "it eliminates from consideration the

relative voting power of the counties that are joined together in a

single election district."  This is a strange claim coming from those

who rely on the proposition that "the voice of every voter" need not

have "approximate equality."  Indeed, representative government, as they

say, is not necessarily one of "bare numbers."  The use of floterial

districts in our political system is not ordinarily based on the theory

that the floterial representative is splintered among the counties of

his district per relative population.  His function is to represent the

whole district.  However, I shall meet the charge on its own ground and

by use of its "adjusted [369 U.S. 257] `total representation'" formula

show that the present apportionment is loco.  For example, compare some

"urban" areas of like population, using the HARLAN formula: County      

               Population  Representation Washington. . . . . . . . . .

. .  36,967        2.65 Madison . . . . . . . . . . . . .  37,245       

4.87 Carter. . . . . . . . . . . . . .  23,303        1.48 Greene. . . .

. . . . . . . . . .  23,649        2.05 Maury . . . . . . . . . . . . .

.  24,556        3.81 Coffee. . . . . . . . . . . . . .  13,406       

2.32 Hamblen . . . . . . . . . . . . .  14,090        1.07 And now,

using the same formula, compare some so-called "rural" areas of like

population: County                      Population  Representation Moore

. . . . . . . . . . . . . .   2,340        1.23 Pickett . . . . . . . .

. . . . .   2,565         .22 Stewart . . . . . . . . . . . . .   5,238 

      1.60 Cheatham. . . . . . . . . . . . .   5,263         .74 Chester

. . . . . . . . . . . . .   6,391        1.36 Grundy. . . . . . . . . .

. . . .   6,540         .69 Smith . . . . . . . . . . . . . .   8,731   

    2.04 Unicoi. . . . . . . . . . . . . .   8,787         .40 And for

counties with similar representation but with gross differences in

population, take: County                      Population  Representation

Sullivan. . . . . . . . . . . . .  55,712        4.07 Maury . . . . . .

. . . . . . . .  24,556        3.81 Blount. . . . . . . . . . . . . . 

30,353        2.12 Coffee. . . . . . . . . . . . . .  13,406        2.32



These cannot be "distorted effects," for here the same formula proposed

by the dissenters is used and the result is even "a crazier" quilt. [369

U.S. 258]



The truth is that -- although this case has been here for two years and

has had over six hours' argument (three times the ordinary case) and has

been most carefully considered over and over again by us in Conference

and individually -- no one, not even the State nor the dissenters, has

come up with any rational basis for Tennessee's apportionment statute.



No one -- except the dissenters advocating the HARLAN "adjusted `total

representation'" formula -- contends that mathematical equality among

voters is required by the Equal Protection Clause.  But certainly there

must be some rational design to a State's districting.  The

discrimination here does not fit any pattern -- as I have said, it is

but a crazy quilt.  My Brother HARLAN contends that other proposed

apportionment plans contain disparities.  Instead of chasing those

rabbits, he should first pause long enough to meet appellants' proof of

discrimination by showing that, in fact, the present plan follows a

rational policy.  Not being able to do this, he merely counters with

such generalities as "classic legislative judgment," no "significant

discrepancy," and "de minimis departures."  I submit that even a casual

glance at the present apportionment picture shows these conclusions to

be entirely fanciful.  If present representation has a policy at all, it

is to maintain the status quo of invidious discrimination at any cost. 

Like the District Court, I conclude that appellants have met the burden

of showing "Tennessee is guilty of a clear violation of the state

constitution and of the [federal] rights of the plaintiffs. . . ." III



Although I find the Tennessee apportionment statute offends the Equal

Protection Clause, I would not consider intervention by this Court into

so delicate a field if there were any other relief available to the

people of Tennessee.  But the majority of the people of Tennessee have

no [369 U.S. 259] "practical opportunities for exerting their political

weight at the polls" to correct the existing "invidious discrimination."

 Tennessee has no initiative and referendum.  I have searched diligently

for other "practical opportunities" present under the law.  I find none

other than through the federal courts.  The majority of the voters have

been caught up in a legislative strait jacket.  Tennessee has an

"informed, civically militant electorate" and "an aroused popular

conscience," but it does not sear "the conscience of the people's

representatives."  This is because the legislative policy has riveted

the present seats in the Assembly to their respective constituencies,

and by the votes of their incumbents a reapportionment of any kind is

prevented.  The people have been rebuffed at the hands of the Assembly;

they have tried the constitutional convention route, but since the call

must originate in the Assembly it, too, has been fruitless.  They have

tried Tennessee courts with the same result, and Governors have fought

the tide only to flounder.  It is said that there is recourse in

Congress, and perhaps that may be, but, from a practical standpoint,

this is without substance.  To date, Congress has never undertaken such

a task in any State.  We therefore must conclude that the people of

Tennessee are stymied, and, without judicial intervention, will be

saddled with the present discrimination in the affairs of their state

government. IV



Finally, we must consider if there are any appropriate modes of

effective judicial relief.  The federal courts are, of course, not

forums for political debate, nor should they [369 U.S. 260] resolve

themselves into state constitutional conventions or legislative

assemblies.  Nor should their jurisdiction be exercised in the hope that

such a declaration as is made today may have the direct effect of

bringing on legislative action and relieving the courts of the problem

of fashioning relief.  To my mind, this would be nothing less than

blackjacking the Assembly into reapportioning the State.  If judicial

competence were lacking to fashion an effective decree, I would dismiss

this appeal.  However, like the Solicitor General of the United States,

I see no such difficulty in the position of this case.  One plan might

be to start with the existing assembly districts, consolidate some of

them, and award the seats thus released to those counties suffering the

most egregious discrimination.  Other possibilities are present, and

might be more effective.  But the plan here suggested would at least

release the strangle hold now on the Assembly and permit it to

redistrict itself.



In this regard, the appellants have proposed a plan based on the

rationale of statewide equal representation.  Not believing that

numerical equality of representation throughout a State is

constitutionally required, I would not apply such a standard, albeit a

permissive one.  Nevertheless, the dissenters attack it by the

application of the HARLAN "adjusted `total representation'" formula. 

The result is that some isolated inequalities are shown, but this, in

itself, does not make the proposed plan irrational, or place it in the

"crazy quilt" category.  Such inequalities, as the dissenters point out

in attempting to support the present apportionment as rational, are

explainable.  Moreover, there is no requirement that any plan have

mathematical exactness in its application.  Only where, as here, the

total picture reveals incommensurables of both magnitude and frequency

can it be said that there is present an invidious discrimination. [369

U.S. 261]



In view of the detailed study that the Court has given this problem, it

is unfortunate that a decision is not reached on the merits.  The

majority appears to hold, at least sub silentio, that an invidious

discrimination is present, but it remands to the three-judge court for

it to make what is certain to be that formal determination.  It is true

that Tennessee has not filed a formal answer.  However, it has filed

voluminous papers and made extended arguments supporting its position. 

At no time has it been able to contradict the appellants' factual

claims; it has offered no rational explanation for the present

apportionment; indeed, it has indicated that there are none known to it.

 As I have emphasized, the case proceeded to the point before the

three-judge court that it was able to find an invidious discrimination

factually present, and the State has not contested that holding here. 

In view of all this background, I doubt if anything more can be offered

or will be gained by the State on remand, other than time. 

Nevertheless, not being able to muster a court to dispose of the case on

the merits, I concur in the opinion of the majority and acquiesce in the

decision to remand.  However, in fairness, I do think that Tennessee is

entitled to have my idea of what it faces on the record before us, and

the trial court some light as to how it might proceed.



As John Rutledge (later Chief Justice) said 175 years ago in the course

of the Constitutional Convention, a chief function of the Court is to

secure the national rights.{10}  Its decision today supports the

proposition for which our forebears fought and many died, namely that,

to be fully conformable to the principle of right, the form of

government must be representative.{11}  That is the keystone upon which

our government was founded [369 U.S. 262] and lacking which no republic

can survive.  It is well for this Court to practice self-restraint and

discipline in constitutional adjudication, but never in its history have

those principles received sanction where the national rights of so many

have been so clearly infringed for so long a time.  National respect for

the courts is more enhanced through the forthright enforcement of those

rights, rather than by rendering them nugatory through the interposition

of subterfuges.  In my view, the ultimate decision today is in the

greatest tradition of this Court. TABLE I Present to   Proposed to

Present total  tal repre-   tal represen- representation  sentation   

tation (appel- using        using J.    lants' plan), 1950 voting   J.

Clark's    Harlan's    using J. Har- County          population   

formula      formula     lan's formula Van Buren. . . . .   2,039       

 .63          .23           .11 Moore. . . . . . .   2,340        2.00  

      1.23           .18 Pickett. . . . . .   2,565         .70         

.22           .24 Sequatchie.  . . .   2,904         .63          .33   

       .19 Meigs. . . . . . .   3,039         .93          .48          

.17 Houston. . . . . .   3,084        1.25          .46           .24

Trousdale. . . . .   3,351        1.33          .43           .12 Lewis.

. . . . . .   3,413        1.25          .39           .25 Perry. . . .

. . .   3,711        1.50          .71           .40 Bledsoe. . . . . . 

 4,198         .63          .49           .24 Clay . . . . . . .   4,528

        .70          .40           .42 Union. . . . . . .   4,600       

 .76          .37           .45 Hancock. . . . . .   4,710         .93  

       .62           .49 Stewart. . . . . .   5,238        1.75        

1.60           .41 Cheatham . . . . .   5,263        1.33          .72  

        .20 Cannon . . . . . .   5,341        2.00         1.43         

 .52 Decatur. . . . . .   5,563        1.10          .79           .52

Lake . . . . . . .   6,252        2.00         1.44           .41

Chester. . . . . .   6,391        2.00         1.36           .19 Grundy

. . . . . .   6,540         .95          .69           .43 Humphreys. .

. . .   6,588        1.25         1.39           .72 Johnson. . . . . . 

 6,649        1.10          .42           .43 [369 U.S. 263] Jackson. .

. . . .   6,719        1.50         1.43           .63 De Kalb. . . . .

.   6,984        2.00         1.56           .68 Benton . . . . . .  

7,023        1.10         1.01           .66 Fentress . . . . .   7,057 

       .70          .62           .64 Grainer. . . . . .   7, 125       

.93          .94           .65 Wayne. . . . . . .   7, 176       1.25   

      .69           .76 Polk . . . . . . .   7,330        1.25         

.68           .73 Hickman. . . . . .   7,598        2.00         1.85   

       .80 Macon. . . . . . .   7,974        1.33         1.01          

.61 Morgan . . . . . .   8,308         .93          .59           .75

Scott. . . . . . .   8,417         .76          .68           .62 Smith.

. . . . . .   8,731        2.50         2.04           .67 Unicoi . . .

. . .   8,787         .93          .40           .63 Rhea . . . . . . . 

 8,937         .93         1.42           .21 White. . . . . . .   9,244

       1.43         1.69           .90 Overton. . . . . .   9,474       

1.70         1.83           .89 Harding. . . . . .   9,577        1.60  

      1.61           .93 Cumberland . . . .   9,593         .63        

1.10           .87 Crockett . . . . .   9,676        2.00         1.66  

        .63 Henderson. . . . .  10,199        1.50          .78         

 .96 Marion . . . . . .  10,998        1.75         1.73           .72

Marshall . . . . .  11,288        2.50         2.28           .84

Dickson. . . . . .  11,294        1.75         2.29          1.23

Jefferson. . . . .  11,359        1.10          .87          1.03

McNairy. . . . . .  11,601        1.60         1.74          1.13 Cocke.

. . . . . .  12,572        1.60         1.46           .89 Sevier . . .

. . .  12,793        1.60         1.47           .69 Claiborne. . . . . 

12,799        1.43         1.61           .34 Monroe . . . . . .  12,884

       1.75         1.68          1.30 Loudon . . . . . .  13,264       

1.25          .28           .52 Warren . . . . . .  13,337        1.75  

      1.89          1.68 Coffee . . . . . .  13,406        2.00        

2.32          1.68 Hardeman . . . . .  13,565        1.60         1.86  

       1.11 Fayette. . . . . .  13,577        2.50         2.48         

1.11 Haywood. . . . . .  13,934        2.50         2.52          1.69

Williamson . . . .  14,064        2.33         2.96          1.71 [369

U.S. 264] Hamblen. . . . . .  14,090        1.10         1.07         

1.67 Franklin . . . . .  14,297        1.75         1.95          1.73

Lauderdale . . . .  14,413        2.50         2.45          1.73

Bedford. . . . . .  14,732        2.00         1.45          1.74

Lincoln. . . . . .  15,092        2.50         2.72          1.77 Henry.

. . . . . .  15,465        2.83         2.76          1.73 Lawrence . .

. . .  15,847        2.00         2.22          1.81 Giles. . . . . . . 

15,935        2.25         2.54          1.81 Tipton . . . . . .  15,944

       3.00         1.68          1.13 Robertson. . . . .  16,456       

2.83         2.62          1.85 Wilson . . . . . .  16,459        3.00  

      3.03          1.21 Carroll. . . . . .  16,472        2.83        

2.88          1.82 Hawkins. . . . . .  16,900        3.00         1.93  

       1.82 Putnam . . . . . .  17,071        1.70         2.50         

1.86 Campbell . . . . .  17,477         .76         1.40          1.94

Roane. . . . . . .  17,639        1.75         1.26          1.30

Weakley. . . . . .  18,007        2.33         2.63          1.85

Bradley. . . . . .  18,273        1.25         1.67          1.92 McMinn

. . . . . .  18,347        1.75         1.97          1.92 Obion. . . .

. . .  18,434        2.00         2.30          1.94 Dyer . . . . . . . 

20,062        2.00         2.36          2.32 Sumner . . . . . .  20,143

       2.33         3.56          2.54 Carter . . . . . .  23,303       

1.10         1.48          2.55 Greene . . . . . .  23,649        1.93  

      2.05          2.68 Maury. . . . . . .  24,556        2.25        

3.81          2.85 Rutherford . . . .  25,316        2.00         3.02  

       2.39 Montgomery . . . .  26,284        3.00         3.73         

3.06 Gibson . . . . . .  29,832        5.00         5.00          2.86

Blount . . . . . .  30,353        1.60         2.12          2.19

Anderson . . . . .  33,990        1.25         1.30          3.62

Washington . . . .  36,967        1.93         2.65          3.45

Madison. . . . . .  37,245        3.50         4.87          3.69

Sullivan . . . . .  55,712        3.00         4.07          5.57

Hamilton . . . . . 131,971        6.00         6.00         15.09 Knox .

. . . . . . 140,559        7.25         8.96         15.21 Davidson . .

. . . 211,930       12.50        12.93         21.57 Shelby . . . . . .

312,345       15.50        16.85         31.59 [369 U.S. 265] STEWART,

J., concurring



MR. JUSTICE STEWART, concurring.



The separate writings of my dissenting and concurring Brothers stray so

far from the subject of today's decision as to convey, I think, a

distressingly inaccurate impression of what the Court decides.  For that

reason, I think it appropriate, in joining the opinion of the Court, to

emphasize in a few words what the opinion does and does not say.



The Court today decides three things, and no more: (a) that the court

possessed jurisdiction of the subject matter; (b) that a justiciable

cause of action is stated upon which appellants would be entitled to

appropriate relief, and (c). . . that the appellants have standing to

challenge the Tennessee apportionment statutes. Ante,



The complaint in this case asserts that Tennessee's system of

apportionment is utterly arbitrary -- without any possible justification

in rationality.  The District Court did not reach the merits of that

claim, and this Court quite properly expresses no view on the subject. 

Contrary to the suggestion of my Brother HARLAN, the Court does not say

or imply that "state legislatures must be so structured as to reflect

with approximate equality the voice of every voter."  Post,   The Court

does not say or imply that there is anything in the Federal Constitution

to prevent a State, acting not irrationally, from choosing any electoral

legislative structure it thinks best suited to the interests, temper,

and customs of its people. Post   And, contrary to the suggestion of my

Brother DOUGLAS, the Court most assuredly does not decide the question,

"may a State weight the vote of one county or one district more heavily

than it weights the vote in another?"  Ante,



In MacDougall v. Green, 335 U.S. 281, the Court held that the Equal

Protection Clause does not deny a State the power to assure a proper

diffusion of political initiative [369 U.S. 266] as between its thinly

populated counties and those having concentrated masses, in view of the

fact that the latter have practical opportunities for exerting their

political weight at the polls not available to the former. 335 U.S. at

284.  In case after case arising under the Equal Protection Clause, the

Court has said what it said again only last Term -- that the Fourteenth

Amendment permits the States a wide scope of discretion in enacting laws

which affect some groups of citizens differently than others. McGowan v.

Maryland, 366 U.S. 420, 425.  In case after case arising under that

Clause, we have also said that "the burden of establishing the

unconstitutionality of a statute rests on him who assails it." 

Metropolitan Casualty Ins. Co. v. Brownell, 294 U.S. 580, 584.



Today's decision does not turn its back on these settled precedents.  I

repeat, the Court today decides only:  (1) that the District Court

possessed jurisdiction of the subject matter; (2) that the complaint

presents a justiciable controversy; (3) that the appellants have

standing.  My Brother CLARK has made a convincing prima facie showing

that Tennessee's system of apportionment is, in fact, utterly arbitrary

-- without any possible justification in rationality.  My Brother HARLAN

has, with imagination and ingenuity, hypothesized possibly rational

bases for Tennessee's system.  But the merits of this case are not

before us now.  The defendants have not yet had an opportunity to be

heard in defense of the State's system of apportionment; indeed, they

have not yet even filed an answer to the complaint.  As in other cases,

the proper place for the trial is in the trial court, not here.

FRANKFURTER, J., dissenting



MR. JUSTICE FRANKFURTER, whom MR. JUSTICE HARLAN joins, dissenting.



The Court today reverses a uniform course of decision established by a

dozen cases, including one by which the very claim now sustained was

unanimously rejected [369 U.S. 267] only five years ago.  The impressive

body of rulings thus cast aside reflected the equally uniform course of

our political history regarding the relationship between population and

legislative representation -- a wholly different matter from denial of

the franchise to individuals because of race, color, religion or sex. 

Such a massive repudiation of the experience of our whole past in

asserting destructively novel judicial power demands a detailed analysis

of the role of this Court in our constitutional scheme.  Disregard of

inherent limits in the effective exercise of the Court's "judicial

Power" not only presages the futility of judicial intervention in the

essentially political conflict of forces by which the relation between

population and representation has time out of mind been, and now is,

determined.  It may well impair the Court's position as the ultimate

organ of "the supreme Law of the Land" in that vast range of legal

problems, often strongly entangled in popular feeling, on which this

Court must pronounce.  The Court's authority -- possessed of neither the

purse nor the sword -- ultimately rests on sustained public confidence

in its moral sanction.  Such feeling must be nourished by the Court's

complete detachment, in fact and in appearance, from political

entanglements and by abstention from injecting itself into the clash of

political forces in political settlements.



A hypothetical claim resting on abstract assumptions is now for the

first time made the basis for affording illusory relief for a particular

evil even though it foreshadows deeper and more pervasive difficulties

in consequence.  The claim is hypothetical, and the assumptions are

abstract, because the Court does not vouchsafe the lower courts -- state

and federal -- guidelines for formulating specific, definite, wholly

unprecedented remedies for the inevitable litigations that today's

umbrageous disposition is bound to stimulate in connection with

politically motivated reapportionments in so many States.  In [369 U.S.

268] such a setting, to promulgate jurisdiction in the abstract is

meaningless.  It is as devoid of reality as "a brooding omnipresence in

the sky," for it conveys no intimation what relief, if any, a District

Court is capable of affording that would not invite legislatures to play

ducks and drakes with the judiciary.  For this Court to direct the

District Court to enforce a claim to which the Court has over the years

consistently found itself required to deny legal enforcement and, at the

same time, to find it necessary to withhold any guidance to the lower

court how to enforce this turnabout, new legal claim, manifests an odd

-- indeed an esoteric -- conception of judicial propriety.  One of the

Court's supporting opinions, as elucidated by commentary, unwittingly

affords a disheartening preview of the mathematical quagmire (apart from

divers judicially inappropriate and elusive determinants) into which

this Court today catapults the lower courts of the country without so

much as adumbrating the basis for a legal calculus as a means of

extrication.  Even assuming the indispensable intellectual

disinterestedness on the part of judges in such matters, they do not

have accepted legal standards or criteria or even reliable analogies to

draw upon for making judicial judgments.  To charge courts with the task

of accommodating the incommensurable factors of policy that underlie

these mathematical puzzles is to attribute, however flatteringly,

omnicompetence to judges.  The Framers of the Constitution persistently

rejected a proposal that embodied this assumption, and Thomas Jefferson

never entertained it.



Recent legislation, creating a district appropriately described as "an

atrocity of ingenuity," is not unique.  Considering the gross inequality

among legislative electoral units within almost every State, the Court

naturally shrinks from asserting that, in districting, at least

substantial equality is a constitutional requirement enforceable [369

U.S. 269] by courts.*  Room continues to be allowed for weighting. 

This, of course, implies that geography, economics, urban-rural

conflict, and all the other non-legal factors which have throughout our

history entered into political districting are to some extent not to be

ruled out in the undefined vista now opened up by review in the federal

courts of state reapportionments.  To some extent -- aye, there's the

rub.  In effect, today's decision empowers the courts of the country to

devise what should constitute the proper composition of the legislatures

of the fifty States.  If state courts should for one reason or another

find themselves unable to discharge this task, the duty of doing so is

put on the federal courts or on this Court, if State views do not

satisfy this Court's notion of what is proper districting.



We were soothingly told at the bar of this Court that we need not worry

about the kind of remedy a court could effectively fashion once the

abstract constitutional right to have courts pass on a statewide system

of electoral districting is recognized as a matter of judicial rhetoric,

because legislatures would heed the Court's admonition.  This is not

only a euphoric hope.  It implies a sorry [369 U.S. 270] confession of

judicial impotence in place of a frank acknowledgment that there is not

under our Constitution a judicial remedy for every political mischief,

for every undesirable exercise of legislative power.  The Framers,

carefully and with deliberate forethought, refused so to enthrone the

judiciary.  In this situation, as in others of like nature, appeal for

relief does not belong here.  Appeal must be to an informed, civically

militant electorate.  In a democratic society like ours, relief must

come through an aroused popular conscience that sears the conscience of

the people's representatives.  In any event, there is nothing judicially

more unseemly nor more self-defeating than for this Court to make in

terrorem pronouncements, to indulge in merely empty rhetoric, sounding a

word of promise to the ear sure to be disappointing to the hope.



This is the latest in the series of cases in which the Equal Protection

and Due Process Clauses of the Fourteenth Amendment have been invoked in

federal courts as restrictions upon the power of the States to allocate

electoral weight among the voting populations of their various

geographical subdivisions.  The present action, which [369 U.S. 271]

comes here on appeal from an order of a statutory three-judge District

Court dismissing amended complaints seeking declaratory and injunctive

relief, challenges the provisions of Tenn.Code Ann., 1955,  3-101 to

3-109, which apportion state representative and senatorial seats among

Tennessee's ninety-five counties.



The original plaintiffs, citizens and qualified voters entitled to vote

for members of the Tennessee Legislature in the several counties in

which they respectively reside, bring this action in their own behalf

and "on behalf of all other voters in the State of Tennessee," or, as

they alternatively assert, on behalf of all qualified voters of their

respective counties, and further, on behalf of all voters of the State

of Tennessee who are similarly situated. The cities of Knoxville and

Chattanooga, and the Mayor of Nashville -- on his own behalf as a

qualified voter and, pursuant to an authorizing resolution by the

Nashville City Council, as a representative of all the city's residents

-- were permitted to intervene as parties plaintiff.  The defendants are

executive officials charged with statutory duties in connection with

state elections. [369 U.S. 272]



The original plaintiffs' amended complaint avers, in substance, the

following.  The Constitution of the State of Tennessee declares that

"elections shall be free and equal," provides that no qualifications

other than age, citizenship and specified residence requirements shall

be attached to the right of suffrage, and prohibits denying to any

person the suffrage to which he is entitled except upon conviction of an

infamous crime.  Art. I,  5; Art. IV,  1.  It requires an enumeration of

qualified voters within every term of ten years after 1871 and an

apportionment of representatives and senators among the several counties

or districts according to the number of qualified voters in each at the

time of each decennial [369 U.S. 273] enumeration.  Art. II,  4, 5, 6. 

Notwithstanding these provisions, the State Legislature has not

reapportioned itself since 1901.  The Reapportionment Act of that year,

Tenn.Acts 1901, c. 122, now Tenn.Code Ann., 1955,  3-101 to 3-109, was

unconstitutional when enacted, because not preceded by the required

enumeration of qualified voters and because it allocated legislative

seats arbitrarily, unequally and discriminatorily, as measured by the

1900 federal census.  Moreover, irrespective of the question of its

validity in 1901, it is asserted that the Act became "unconstitutional

and obsolete" in 1911 by virtue of the decennial reapportionment

requirement of the Tennessee Constitution.  Continuing a "purposeful and

systematic plan to discriminate against a geographical class of

persons," recent Tennessee Legislatures have failed, as did their

predecessors, to enact reapportionment legislation, although a number of

bills providing for reapportionment have been introduced.  Because of

population shifts since 1901, the apportionment fixed by the Act of that

year and still in effect is not proportionate to population, denies to

the counties in which the plaintiffs [369 U.S. 274] live an additional

number of representatives to which they are entitled, and renders

plaintiffs' votes "not as effective as the votes of the voters residing

in other senatorial and representative districts. . . ."  Plaintiffs

suffer a debasement of their votes by virtue of the incorrect,

arbitrary, obsolete and unconstitutional apportionment of the General

Assembly . . . , and the totality of the malapportionment's effect --

which permits a minority of about thirty-seven percent of the voting

population of the State to control twenty of the thirty-three members of

Tennessee's Senate, and a minority of forty percent of the voting

population to control sixty-three of the ninety-nine members of the

House -- results in "a distortion of the constitutional system"

established by the Federal and State Constitutions, prevents the General

Assembly "from being a body representative of the people of the State of

Tennessee, . . ." and is "contrary to the basic principle of

representative government . . . ," and "contrary to the philosophy of

government in the United States and all Anglo-Saxon jurisprudence. . .

."



Exhibits appended to the complaint purport to demonstrate the extent of

the inequalities of which plaintiffs complain.  Based upon "approximate

voting population," these set forth figures showing that the State [369

U.S. 275] Senator from Tennessee's most populous senatorial district

represents five and two-tenths times the number of voters represented by

the Senator from the least populous district, while the corresponding

ratio for most and least populous House districts is more than eighteen

to one.  The General Assembly thus apportioned has discriminated against

the underrepresented counties and in favor of the overrepresented

counties in the collection and distribution of various taxes and tax

revenues, notably in the distribution of school and highway improvement

funds, this discrimination being "made possible and effective" by the

Legislature's failure to reapportion itself.  Plaintiffs conclude that

election of the State Legislature pursuant to the apportionment fixed by

the 1901 Act violates the Tennessee Constitution and deprives them of

due process of law and of the equal protection of the laws guaranteed by

the Fourteenth Amendment.  Their prayer below was for a declaratory

judgment striking down the Act, an injunction restraining defendants

from any acts necessary to the holding of elections in the districts

prescribed by Tenn.Code Ann., 1955,  3-101 to 3-109, until such time as

the legislature is reapportioned "according to the [369 U.S. 276]

Constitution of the State of Tennessee," and an order directing

defendants to declare the next primary and general elections for members

of the Tennessee Legislature on an at-large basis -- the thirty-three

senatorial candidates and the ninety-nine representative candidates

receiving the highest number of votes to be declared elected.



Motions to dismiss for want of jurisdiction of the subject matter and

for failure to state a claim were made and granted, 179 F.Supp. 824, the

District Court relying upon this Court's series of decisions beginning

with Colegrove v. Green, 328 U.S. 549, rehearing denied, 329 U.S. 825,

motion for reargument before the full bench denied, 329 U.S. 828.  The

original and intervening plaintiffs bring the case here on appeal.  364

U.S. 898.  In this Court they have altered their request for relief,

suggesting a "step-by-step approach."  The first step is a remand to the

District Court with directions to vacate the order dismissing the

complaint and to enter an order retaining jurisdiction, providing "the

necessary spur to legislative action. . . ."  If this proves

insufficient, appellants will ask the "additional spur" of an injunction

prohibiting elections under the 1901 Act or a declaration of the Act's

unconstitutionality, or both.  Finally, all other means failing, the

District Court is invited by the plaintiffs, greatly daring, to order an

election at large or redistrict the State itself or through a master. 

The Solicitor General of the United States, who has filed a brief amicus

and argued in favor of reversal, asks the Court on this appeal to hold

only that the District Court has "jurisdiction," and may properly

exercise it to entertain the plaintiffs' claims on the merits.  This

would leave to that court after remand the questions of the challenged

statute's [369 U.S. 277] constitutionality and of some undefined,

unadumbrated relief in the event a constitutional violation is found. 

After an argument at the last Term, the case was set down for

reargument, 366 U.S. 907, and heard this Term. I



In sustaining appellants' claim, based on the Fourteenth Amendment, that

the District Court may entertain this suit, this Court's uniform course

of decision over the years is overruled or disregarded.  Explicitly it

begins with Colegrove v. Green, supra, decided in 1946, but its roots

run deep in the Court's historic adjudicatory process.



Colegrove held that a federal court should not entertain an action for

declaratory and injunctive relief to adjudicate the constitutionality,

under the Equal Protection Clause and other federal constitutional and

statutory provisions, of a state statute establishing the respective

districts for the State's election of Representatives to the Congress. 

Two opinions were written by the four Justices who composed the majority

of the seven sitting members of the Court.  Both opinions joining in the

result in Colegrove v. Green agreed that considerations were controlling

which dictated denial of jurisdiction, though not in the strict sense of

want of power.  While the two opinions show a divergence of view

regarding some of these considerations, there are important points of

concurrence.  Both opinions demonstrate a predominant concern, first,

with avoiding federal judicial involvement in matters traditionally left

to legislative policy making; second, with respect to the difficulty --

in view of the nature of the problems of apportionment and its history

in this country -- of drawing on or devising judicial standards for

judgment, as opposed to legislative determinations, of the part which

mere numerical equality among voters should play as a criterion for the

allocation of [369 U.S. 278] political power; and, third, with problems

of finding appropriate modes of relief -- particularly, the problem of

resolving the essentially political issue of the relative merits of

at-large elections and elections held in districts of unequal

population.



The broad applicability of these considerations -- summarized in the

loose shorthand phrase, "political question" -- in cases involving a

State's apportionment of voting power among its numerous localities has

led the Court, since 1946, to recognize their controlling effect in a

variety of situations.  (In all these cases, decision was by a full

Court.)  The "political question" principle as applied in Colegrove has

found wide application commensurate with its function as "one of the

rules basic to the federal system and this Court's appropriate place

within that structure."  Rescue Army v. Municipal Court, 331 U.S. 549,

570.  In Colegrove v. Barrett, 330 U.S. 804, litigants brought suit in a

Federal District Court challenging as offensive to the Equal Protection

Clause Illinois' state legislative apportionment laws.  They pointed to

state constitutional provisions requiring decennial reapportionment and

allocation of seats in proportion to population, alleged a failure to

reapportion for more than forty-five years -- during which time

extensive population shifts had rendered the legislative districts

grossly unequal -- and sought declaratory and injunctive relief with

respect to all elections to be held thereafter.  After the complaint was

dismissed by the District Court, this Court dismissed an appeal for want

of a substantial federal question.  A similar District Court decision

was affirmed here in Radford v. Gary, 352 U.S. 991.  And cf. Remmey v.

Smith, 342 U.S. 916.  In Tedesco v. Board of Supervisors, 339 U.S. 940,

the Court declined to hear, for want of a substantial federal question,

the claim that the division of a municipality into voting districts of

unequal population for the selection for councilmen fell [369 U.S. 279]

afoul of the Fourteenth Amendment, and in Cox v. Peters, 342 U.S. 936,

rehearing denied, 343 U.S. 921, it found no substantial federal question

raised by a state court's dismissal of a claim for damages for

"devaluation" of plaintiff's vote by application of Georgia's county

unit system in a primary election for the Democratic gubernatorial

candidate.  The same Georgia system was subsequently attacked in a

complaint for declaratory judgment and an injunction; the federal

district judge declined to take the requisite steps for the convening of

a statutory three-judge court, and this Court, in Hartsfield v. Sloan,

357 U.S. 916, denied a motion for leave to file a petition for a writ of

mandamus to compel the district judge to act.  In MacDougall v. Green,

335 U.S. 281, 283, the Court noted that "[t]o assume that political

power is a function exclusively of numbers is to disregard the

practicalities of government," and, citing the Colegrove cases, declined

to find in "such broad constitutional concepts as due process and equal

protection of the laws," id. at 284, a warrant for federal judicial

invalidation of an Illinois statute requiring as a condition for the

formation of a new political party the securing of at least two hundred

signatures from each of fifty counties.  And in South v. Peters, 339

U.S. 276, another suit attacking Georgia's county unit law, it affirmed

a District Court dismissal, saying: Federal courts consistently refuse

to exercise their equity powers in cases posing political issues arising

from a state's geographical distribution of electoral strength among its

political subdivisions. Id. at 277.



Of course, it is important to recognize particular, relevant diversities

among comprehensively similar situations.  Appellants seek to

distinguish several of this Court's prior decisions on one or another

ground -- Colegrove v. [369 U.S. 280] Green on the ground that federal,

not state, legislative apportionment was involved; Remmey v. Smith on

the ground that state judicial remedies had not been tried; Radford v.

Gary on the ground that Oklahoma has the initiative, whereas Tennessee

does not.  It would only darken counsel to discuss the relevance and

significance of each of these assertedly distinguishing factors here and

in the context of this entire line of cases.  Suffice it that they do

not serve to distinguish Colegrove v. Barrett, supra, which is on all

fours with the present case, or to distinguish Kidd v. McCanless, 352

U.S. 920, in which the full Court without dissent, only five years ago,

dismissed, on authority of Colegrove v. Green and Anderson v. Jordan,

343 U.S. 912, an appeal from the Supreme Court of Tennessee in which a

precisely similar attack was made upon the very statute now challenged. 

If the weight and momentum of an unvarying course of carefully

considered decisions are to be respected, appellants' claims are

foreclosed not only by precedents governing the exact facts of the

present case, but are themselves supported by authority the more

persuasive in that it gives effect to the Colegrove principle in

distinctly varying circumstances in which state arrangements allocating

relative degrees of political influence among geographic groups of

voters were challenged under the Fourteenth Amendment. II



The Colegrove doctrine, in the form in which repeated decisions have

settled it, was not an innovation.  It represents long judicial thought

and experience.  From its earliest opinions, this Court has consistently

recognized a class of controversies which do not lend themselves to

judicial standards and judicial remedies.  To classify the various

instances as "political questions" is, rather, a form [369 U.S. 281] of

stating this conclusion than revealing of analysis.{10}  Some of the

cases so labelled have no relevance here.  But from others emerge

unifying considerations that are compelling.



1. The cases concerning war or foreign affairs, for example, are usually

explained by the necessity of the country's speaking with one voice in

such matters.  While this concern alone undoubtedly accounts for many of

the decisions,{11} others do not fit the pattern.  It would hardly

embarrass the conduct of war were this Court to determine, in connection

with private transactions between litigants, the date upon which war is

to be deemed terminated.  But the Court has refused to do so.  See,

e.g., The Protector, 12 Wall. 700; Brown v. Hiatts, 15 Wall. 177; Adger

v. Alston, 15 Wall. 555; Williams v. Bruffy, 96 U.S. 176, 192-193.  It

does not suffice to explain such cases as Ludecke v. Watkins, 335 U.S.

160 -- deferring to political determination the question of the duration

of war for purposes of the Presidential power to deport alien enemies --

that judicial intrusion would seriously [369 U.S. 282] impede the

President's power effectively to protect the country's interests in time

of war.  Of course, this is true; but the precise issue presented is the

duration of the time of war which demands the power.  Cf. Martin v.

Mott, 12 Wheat.19; Lamar v. Browne, 92 U.S. 187, 193; Hamilton v.

Kentucky Distilleries & Warehouse Co., 251 U.S. 146; Kahn v. Anderson,

255 U.S. 1.  And even for the purpose of determining the extent of

congressional regulatory power over the tribes and dependent communities

of Indians, it is ordinarily for Congress, not the Court, to determine

whether or not a particular Indian group retains the characteristics

constitutionally requisite to confer the power.{12}  E.g., United States

v. Holliday, 3 Wall. 407; Tiger v. Western Investment Co., 221 U.S. 286;

United States v. Sandoval, 231 U.S. 28.  A controlling factor in such

cases is that, decision respecting these kinds of complex matters of

policy being traditionally committed not to courts but to the political

agencies of government for determination by criteria of political

expediency, there exists no standard ascertainable by settled judicial

experience or process by reference to which a political decision

affecting the question at issue between the parties can be judged. 

Where the question arises in the course of a litigation involving

primarily the adjudication of other issues between the litigants, the

Court accepts as a basis for adjudication the political departments'

decision of it.  But where its determination is the sole function to be

served by the exercise of the judicial power, the Court will not

entertain the action.  See Chicago & Southern Air Lines, Inc., v.

Waterman S.S. Corp., [369 U.S. 283] 333 U.S. 103.  The dominant

consideration is "the lack of satisfactory criteria for a judicial

determination. . . ."  Mr. Chief Justice Hughes, for the Court, in

Coleman v. Miller, 307 U.S. 433, 454-455.  Compare United States v.

Rogers, 4 How. 567, 572, with Worcester v. Georgia, 6 Pet. 515.{13}



This may be, like so many questions of law, a matter of degree. 

Questions have arisen under the Constitution to which adjudication gives

answer although the criteria for decision are less than unwavering

bright lines.  Often, in these cases, illumination was found in the

federal structures established by, or the underlying presuppositions of,

the Constitution.  With respect to such questions, the Court has

recognized that, concerning a particular power of Congress put in issue,

". . . effective restraints on its exercise must proceed from political,

rather than from judicial processes."  Wickard v. Filburn, 317 U.S. 111,

120.  It is also true that, even regarding the duration of war and the

status of Indian tribes, referred to above as subjects ordinarily

committed exclusively to the nonjudicial branches, the Court has

suggested that some limitations exist upon the range within which the

decisions of those branches will be permitted to go unreviewed.  See

United States v. Sandoval, supra, at 46; cf. Chastleton Corp. v.

Sinclair, 264 U.S. 543.  But this is merely to acknowledge that

particular circumstances may differ so greatly in degree as to differ

thereby in kind, and that, although within a certain range of cases on a

continuum, no standard of distinction can be found to tell between them,

other cases will fall above or below the range.  The doctrine of

political questions, like any other, is not to [369 U.S. 284] be applied

beyond the limits of its own logic, with all the quiddities and abstract

disharmonies it may manifest.  See the disposition of contentions based

on logically distorting views of Colegrove v. Green and Hunter v.

Pittsburgh, 207 U.S. 161, in Gomillion v. Lightfoot, 364 U.S. 339.



2. The Court has been particularly unwilling to intervene in matters

concerning the structure and organization of the political institutions

of the States.  The abstention from judicial entry into such areas has

been greater even than that which marks the Court's ordinary approach to

issues of state power challenged under broad federal guarantees. We

should be very reluctant to decide that we had jurisdiction in such a

case, and thus in an action of this nature to supervise and review the

political administration of a state government by its own officials and

through its own courts.  The jurisdiction of this court would only exist

in case there had been . . . such a plain and substantial departure from

the fundamental principles upon which our government is based that it

could with truth and propriety be said that, if the judgment were

suffered to remain, the party aggrieved would be deprived of his life,

liberty or property in violation of the provisions of the Federal

Constitution. Wilson v. North Carolina, 169 U.S. 586, 596.   See Taylor

and Marshall v. Beckham (No. 1), 178 U.S. 548; Walton v. House of

Representatives, 265 U.S. 487; Snowden v. Hughes, 321 U.S. 1.  Cf. In re

Sawyer, 124 U.S. 200, 220-221.



Where, however, state law has made particular federal questions

determinative of relations within the structure of state government, not

in challenge of it, the Court has resolved such narrow, legally defined

questions in proper proceedings.  See Boyd v. Nebraska ex rel. Thayer,

143 U.S. 135.  In such instances, there is no conflict between state

policy and the exercise of federal judicial [369 U.S. 285] power.  This

distinction explains the decisions in Smiley v. Holm, 285 U.S. 355;

Koenig v. Flynn, 285 U.S. 375, and Carroll v. Becker, 285 U.S. 380, in

which the Court released state constitutional provisions prescribing

local lawmaking procedures from misconceived restriction of superior

federal requirements.  Adjudication of the federal claim involved in

those cases was not one demanding the accommodation of conflicting

interests for which no readily accessible judicial standards could be

found.  See McPherson v. Blacker, 146 U.S. 1, in which, in a case coming

here on writ of error from the judgment of a state court which had

entertained it on the merits, the Court treated as justiciable the claim

that a State could not constitutionally select its presidential electors

by districts, but held that Art. II,  1, cl. 2, of the Constitution left

the mode of choosing electors in the absolute discretion of the States. 

Cf. Pope v. Williams, 193 U.S. 621; Breedlove v. Suttles, 302 U.S. 277. 

To read with literalness the abstracted jurisdictional discussion in the

McPherson opinion reveals the danger of conceptions of "justiciability"

derived from talk, and not from the effective decision in a case.  In

probing beneath the surface of cases in which the Court has declined to

interfere with the actions of political organs of government, of

decisive significance is whether, in each situation, the ultimate

decision has been to intervene or not to intervene.  Compare the

reliance in South v. Peters, 339 U.S. 276, on MacDougall v. Green, 335

U.S. 281, and the "jurisdictional" form of the opinion in Wilson v.

North Carolina, 169 U.S. 586, 596, supra.



3. The cases involving Negro disfranchisement are no exception to the

principle of avoiding federal judicial intervention into matters of

state government in the absence of an explicit and clear constitutional

imperative. For here the controlling command of Supreme Law is plain and

unequivocal. An end of discrimination against [369 U.S. 286] the Negro

was the compelling motive of the Civil War Amendments.  The Fifteenth

expresses this in terms, and it is no less true of the Equal Protecting

Clause of the Fourteenth.  Slaughter-House Cases, 16 Wall. 36, 67-72;

Strauder v. West Virginia, 100 U.S. 303,  Nixon v. Herndon, 273 U.S.

536, 541.  Thus, the Court, in cases involving discrimination against

the Negro's right to vote, has recognized not only the action at law for

damages,{14} but, in appropriate circumstances, the extraordinary remedy

of declaratory or injunctive relief.{15}  Schnell v. Davis, 336 U.S.

933; Terry v. Adams, 345 U.S. 461.{16}  Injunctions in these cases, it

should be noted, would not have restrained statewide general elections. 

Compare Giles v. Harris, 189 U.S. 475.



4. The Court has refused to exercise its jurisdiction to pass on

"abstract questions of political power, of sovereignty, of government." 

Massachusetts v. Mellon, 262 U.S. 447, 485.  See Texas v. Interstate

Commerce Commission, 258 U.S. 158, 162; New Jersey v. Sargent, 269 U.S.

328, 337.  The "political question" doctrine, in this aspect, reflects

the policies underlying the requirement of "standing":  that the

litigant who would challenge official [369 U.S. 287] action must claim

infringement of an interest particular and personal to himself, as

distinguished from a cause of dissatisfaction with the general frame and

functioning of government -- a complaint that the political institutions

are awry.  See Stearns v. Wood, 236 U.S. 75; Fairchild v. Hughes, 258

U.S. 126; United Public Workers v. Mitchell, 330 U.S. 75, 89-91.  What

renders cases of this kind nonjusticiable is not necessarily the nature

of the parties to them, for the Court has resolved other issues between

similar parties;{17} nor is it the nature of the legal question

involved, for the same type of question has been adjudicated when

presented in other forms of controversy.{18}  The crux of the matter is

that courts are not fit instruments of decision where what is

essentially at stake is the composition of those large contests of

policy traditionally fought out in nonjudicial forums, by which

governments and the actions of governments are made and unmade.  See

Texas v. White, 7 Wall. 700; White v. Hart, 13 Wall. 646; Phillips v.

Payne, 92 U.S. 130; Marsh v. Burroughs, 1 Woods 463, 471-472 (Bradley,

Circuit Justice); cf. Wilson v. Shaw, 204 U.S. 24; but see Coyle v.

Smith, 221 U.S. 559.  Thus, where the Cherokee Nation sought by an

original motion to restrain the State of Georgia from the enforcement of

laws which assimilated Cherokee territory to the State's counties,

abrogated Cherokee law, and abolished Cherokee government, the Court

held that such a claim was not judicially cognizable.  Cherokee Nation

v. Georgia, 5 Pet. 1.{19}  And in Georgia [369 U.S. 288] v. Stanton, 6

Wall. 50, the Court dismissed for want of jurisdiction a bill by the

State of Georgia seeking to enjoin enforcement of the Reconstruction

Acts on the ground that the command by military districts which they

established extinguished existing state government and replaced it with

a form of government unauthorized by the Constitution:{20}



That these matters, both as stated in the body of the bill and in the

prayers for relief, call for the judgment of the court upon political

questions, and upon rights not of persons or property, but of a

political character, will hardly be denied.  For the rights for the

protection of which our authority is invoked are the rights of

sovereignty, of political jurisdiction, of government, of corporate

existence as a State, with all its constitutional powers and privileges.

 No case of private rights or private property infringed, or in danger

of actual or threatened infringement, is presented by the bill, in a

judicial form, for the judgment of the court. Id. at 77.{21} [369 U.S.

289]



5. The influence of these converging considerations -- the caution not

to undertake decision where standards meet for judicial judgment are

lacking, the reluctance to interfere with matters of state government in

the absence of an unquestionable and effectively enforceable mandate,

the unwillingness to make courts arbiters of the broad issues of

political organization historically committed to other institutions and

for whose adjustment the judicial process is ill-adapted -- has been

decisive of the settled line of cases, reaching back more than a

century, which holds that Art. IV,  4, of the Constitution, guaranteeing

to the States "a Republican Form of Government,"{22} is not enforceable

through the courts.  E.g., O'Neill v. Leamer, 239 U.S. 244; Mountain

Timber Co. v. Washington, 243 U.S. 219; Cochran v. Board of Education,

281 U.S. 370; Highland Farms Dairy, Inc., v. Anew, 300 U.S. 608.{23} 

Claims resting on this specific [369 U.S. 290] guarantee of the

Constitution have been held nonjusticiable which challenged state

distribution of powers between the legislative and judicial branches,

Ohio ex rel. Bryant v. Akron Metropolitan Park District, 281 U.S. 74,

state delegation of power to municipalities, Kiernan v. Portland,

Oregon, 223 U.S. 151, state adoption of the referendum as a legislative

institution, Ohio ex rel. Davis v. Hildebrant, 241 U.S. 565, 569, and

state restriction upon the power of state constitutional amendment,

Marshall v. Dye, 231 U.S. 250, 256-257.  The subject was fully

considered in Pacific States Telephone & Telegraph Co. v. Oregon, 223

U.S. 118, in which the Court dismissed for want of jurisdiction a writ

of error attacking a state license tax statute enacted by the

initiative, on the claim that this mode of legislation was inconsistent

with a Republican Form of Government and violated the Equal Protection

Clause and other federal guarantees.  After noting . . . the ruinous

destruction of legislative authority in matters purely political which

would necessarily be occasioned by giving sanction [369 U.S. 291] to the

doctrine which underlies and would be necessarily involved in sustaining

the propositions contended for,{24} the Court said:



. . .  [The] essentially political nature [of this claim] is at once

made manifest by understanding that the assault which the contention

here advanced makes it [sic] not on the tax as a tax, but on the State

as a State.  It is addressed to the framework and political character of

the government by which the statute levying the tax was passed.  It is

the government, the political entity, which (reducing the case to its

essence) is called to the bar of this court not for the purpose of

testing judicially some exercise of power assailed, on the ground that

its exertion [369 U.S. 292] has injuriously affected the rights of an

individual because of repugnancy to some constitutional limitation, but

to demand of the State that it establish its right to exist as a State,

republican in form. Id. at



The starting point of the doctrine applied in these cases is, of course,

Luther v. Borden, 7 How. 1.  The case arose out of the Dorr Rebellion in

Rhode Island in 1841-1842.  Rhode Island, at the time of the separation

from England, had not adopted a new constitution, but had continued, in

its existence as an independent State, under its original royal Charter,

with certain statutory alterations.  This frame of government provided

no means for amendment of the fundamental law; the right of suffrage was

to be prescribed by legislation, which limited it to freeholders.  In

the 1830's, largely because of the growth of towns in which there

developed a propertied class whose means were not represented by

freehold estates, dissatisfaction arose with the suffrage qualifications

of the charter government.  In addition, population shifts had caused a

dated apportionment of seats in the lower house to yield substantial

numerical inequality of political influence, even among qualified

voters.  The towns felt themselves underrepresented, and agitation began

for electoral reform.  When the charter government failed to respond,

popular meetings of those who favored the broader suffrage were held and

delegates elected to a convention which met and drafted a state

constitution.  This constitution provided for universal manhood suffrage

(with certain qualifications), and it was to be adopted by vote of the

people at elections at which a similarly expansive franchise obtained. 

This new scheme of government was ratified at the polls and declared

effective by the convention, but the government elected and organized

under it, with Dorr at its head, never came to power.  The [369 U.S.

293] charter government denied the validity of the convention, the

constitution and its government and, after an insignificant skirmish,

routed Dorr and his followers.  It meanwhile provided for the calling of

its own convention, which drafted a constitution that went peacefully

into effect in 1843.{25}



Luther v. Borden was a trespass action brought by one of Dorr's

supporters in a United States Circuit Court to recover damages for the

breaking and entering of his house.  The defendants justified under

military orders pursuant to martial law declared by the charter

government, and plaintiff, by his reply, joined issue on the legality of

the charter government subsequent to the adoption of the Dorr

constitution.  Evidence offered by the plaintiff tending to establish

that the Dorr government was the rightful government of Rhode Island was

rejected by the Circuit Court; the court charged the jury that the

charter government was lawful, and, on a verdict for defendants,

plaintiff brought a writ of error to this Court.



The Court, through Mr. Chief Justice Taney, affirmed.  After noting that

the issue of the charter government's legality had been resolved in that

government's favor by the state courts of Rhode Island -- that the state

courts, deeming the matter a political one unfit for judicial

determination, had declined to entertain attacks upon the existence and

authority of the charter government -- the Chief Justice held that the

courts of the United States must follow those of the State in this

regard.  Id. at 39-40.  It was recognized that the compulsion to follow

[369 U.S. 294] state law would not apply in a federal court in the face

of a superior command found in the Federal Constitution, ibid., but no

such command was found.  The Constitution, the Court said -- referring

to the Guarantee Clause of the Fourth Article -- . . . as far as it has

provided for an emergency of this kind, and authorized the general

government to interfere in the domestic concerns of a State, has treated

the subject as political in its nature, and placed the power in the

hands of that department. Id. at 42.



Under this article of the Constitution, it rests with Congress to decide

what government is the established one in a State.  For, as the United

States guarantee to each State a republican government, Congress must

necessarily decide what government is established in the State before it

can determine whether it is republican or not.  And when the senators

and representatives of a State are admitted into the councils of the

Union, the authority of the government under which they are appointed,

as well as its republican character, is recognized by the proper

constitutional authority.  And its decision is binding on every other

department of the government, and could not be questioned in a judicial

tribunal.  It is true that the contest in this case did not last long

enough to bring the matter to this issue, and as no senators or

representatives were elected under the authority of the government of

which Mr. Dorr was the head, Congress was not called upon to decide the

controversy.  Yet the right to decide is placed there, and not in the

courts. Ibid.{26} [369 U.S. 295]



In determining this issue nonjusticiable, the Court was sensitive to the

same considerations to which its later decisions have given the varied

applications already discussed.  It adverted to the delicacy of judicial

intervention into the very structure of government.{27}  It acknowledged

that tradition had long entrusted questions of this nature to

nonjudicial processes,{28} and that judicial processes were unsuited to

their decision.{29}  The absence of guiding standards for judgment was

critical, for the question whether the Dorr constitution had been

rightfully adopted depended, in part, upon the extent of the franchise

to be recognized -- the very point of contention over which rebellion

had been fought.



. . .  [I]f the Circuit Court had entered upon this inquiry, by what

rule could it have determined the qualification of voters upon the

adoption or rejection of the proposed constitution, unless there was

some previous law of the State to guide it?  It is the province of a

court to expound the law, not to make it.  And certainly it is no part

of the judicial functions of any court of the United States to prescribe

the qualification of voters in a State, giving the right to those to

whom it is denied by the written and established constitution and laws

of the State, or taking it away from those to whom it is given; nor has

it the right to determine what political privileges [369 U.S. 296] the

citizens of a State are entitled to, unless there is an established

constitution or law to govern its decision. Id. at 41.



Mr. Justice Woodbury (who dissented with respect to the effect of

martial law) agreed with the Court regarding the inappropriateness of

judicial inquiry into the issues:



But, fortunately for our freedom from political excitements in judicial

duties, this court can never with propriety be called on officially to

be the umpire in questions merely political.  The adjustment of these

questions belongs to the people and their political representatives,

either in the State or general government.  These questions relate to

matters not to be settled on strict legal principles.  They are adjusted

rather by inclination -- or prejudice or compromise, often.  Some of

them succeed or are defeated even by public policy alone, or mere naked

power, rather than intrinsic right. . . .



Another evil, alarming and little foreseen, involved in regarding these

as questions for the final arbitrament of judges would be that, in such

an event. all political privileges and rights would, in a dispute among

the people, depend on our decision finally. . . .  [D]isputed points in

making constitutions, depending often, as before shown, on policy,

inclination, popular resolves, and popular will, . . . if the people, in

the distribution of powers under the constitution, should ever think of

making judges supreme arbiters in political controversies, when not

selected by nor, frequently, amenable to them, nor at liberty to follow

such various considerations in their judgments as belong to mere

political questions, they will dethrone themselves and lose one of their

own invaluable birthrights; building up in this way -- slowly, but

surely -- a new sovereign power in the [369 U.S. 297] republic, in most

respects irresponsible and unchangeable for life, and one more

dangerous, in theory at least, than the worst elective oligarchy in the

worst of times. . . . Id. at 51-53.{30} III



The present case involves all of the elements that have made the

Guarantee Clause cases nonjusticiable.  It is, in effect, a Guarantee

Clause claim masquerading under a different label.  But it cannot make

the case more fit for judicial action that appellants invoke the

Fourteenth Amendment, rather than Art. IV,  4, where, in fact, the gist

of their complaint is the same -- unless it can be found that the

Fourteenth Amendment speaks with greater particularity to their

situation.  We have been admonished to avoid "the tyranny of labels." 

Snyder v. Massachusetts, 291 U.S. 97, 114.  Art. IV,  4, is not

committed by express constitutional terms to Congress.  It is the nature

of the controversies arising under it, nothing else, which has made it

judicially unenforceable.  Of course, if a controversy falls within

judicial power, it depends "on how he [the plaintiff] casts his action,"

Pan American Petroleum Corp. v. Superior Court, 366 U.S. 656, 662,

whether he brings himself within a jurisdictional statute.  But where

judicial competence is wanting, it cannot be created by invoking one

clause of the Constitution rather than another.  When what was

essentially a Guarantee Clause claim was sought to be laid, as well,

under the Equal Protection Clause in Pacific States Telephone &

Telegraph Co. v. Oregon, supra, the Court had no difficulty in

"dispelling [369 U.S. 298] any mere confusion resulting from forms of

expression and considering the substance of things. . . ."  223 U.S. at

140.



Here, appellants attack "the State as a State," precisely as it was

perceived to be attacked in the Pacific States case, id. at 150.  Their

complaint is that the basis of representation of the Tennessee

Legislature hurts them.  They assert that "a minority now rules in

Tennessee," that the apportionment statute results in a "distortion of

the constitutional system," that the General Assembly is no longer "a

body representative of the people of the State of Tennessee," all

"contrary to the basic principle of representative government. . . ." 

Accepting appellants' own formulation of the issue, one can know this

handsaw from a hawk.  Such a claim would be nonjusticiable not merely

under Art. IT,  4, but under any clause of the Constitution, by virtue

of the very fact that a federal court is not a forum for political

debate.  Massachusetts v. Mellon, supra.



But appellants, of course, do not rest on this claim simpliciter.  In

invoking the Equal Protection Clause, they assert that the distortion of

representative government complained of is produced by systematic

discrimination against them, by way of "a debasement of their votes. . .

."  Does this characterization, with due regard for the facts from which

it is derived, add anything to appellants' case?{31}



At first blush, this charge of discrimination based on legislative

underrepresentation is given the appearance of [369 U.S. 299] a more

private, less impersonal, claim than the assertion that the frame of

government is askew.  Appellants appear as representatives of a class

that is prejudiced as a class, in contradistinction to the polity in its

entirety.  However, the discrimination relied on is the deprivation of

what appellants conceive to be their proportionate share of political

influence.  This, of course, is the practical effect of any allocation

of power within the institutions of government.  Hardly any distribution

of political authority that could be assailed as rendering government

nonrepublican would fail similarly to operate to the prejudice of some

groups, and to the advantage of others, within the body politic.  It

would be ingenuous not to see, or consciously blind to deny, that the

real battle over the initiative and referendum, or over a delegation of

power to local, rather than statewide authority, is the battle between

forces whose influence is disparate among the various organs of

government to whom power may be given.  No shift of power but works a

corresponding shift in political influence among the groups composing a

society.



What, then, is this question of legislative apportionment?  Appellants

invoke the right to vote and to have their votes counted.{32}  But they

are permitted to vote, and their votes are counted.  They go to the

polls, they cast their ballots, they send their representatives to the

state [369 U.S. 300] councils.  Their complaint is simply that the

representatives are not sufficiently numerous or powerful -- in short,

that Tennessee has adopted a basis of representation with which they are

dissatisfied.  Talk of "debasement" or "dilution" is circular talk.  One

cannot speak of "debasement" or "dilution" of the value of a vote until

there is first defined a standard of reference as to what a vote should

be worth.  What is actually asked of the Court in this case is to choose

among competing bases of representation -- ultimately, really, among

competing theories of political philosophy -- in order to establish an

appropriate frame of government for the State of Tennessee, and thereby

for all the States of the Union.



In such a matter, abstract analogies which ignore the facts of history

deal in unrealities; they betray reason.  This is not a case in which a

State has, through a device however oblique and sophisticated, denied

Negroes or Jews or redheaded persons a vote, or given them only a third

or a sixth of a vote.  That was Gomillion v. Lightfoot, 364 U.S. 339. 

What Tennessee illustrates is an old and still widespread method of

representation -- representation by local geographical division, only in

part respective of population -- in preference to others, others,

forsooth, more appealing.  Appellants contest this choice, and seek to

make this Court the arbiter of the disagreement.  They would make the

Equal Protection Clause the charter of adjudication, asserting that the

equality which it guarantees comports, if not the assurance of equal

weight to every voter's vote, at least the basic conception that

representation ought to be proportionate to population, a standard by

reference to which the reasonableness of apportionment plans may be

judged.



To find such a political conception legally enforceable in the broad and

unspecific guarantee of equal protection is to rewrite the Constitution.

 See Luther v. Borden, supra.  Certainly "equal protection" is no more

secure [369 U.S. 301] a foundation for judicial judgment of the

permissibility of varying forms of representative government than is

"Republican Form."  Indeed, since "equal protection of the laws" can

only mean an equality of persons standing in the same relation to

whatever governmental action is challenged, the determination whether

treatment is equal presupposes a determination concerning the nature of

the relationship.  This, with respect to apportionment, means an inquiry

into the theoretic base of representation in an acceptably republican

state.  For a court could not determine the equal protection issue

without, in fact, first determining the Republican Form issue, simply

because what is reasonable for equal protection purposes will depend

upon what frame of government, basically, is allowed.  To divorce "equal

protection" from "Republican Form" is to talk about half a question.



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 -- that it is,

in appellants' words "the basic principle of representative government"

-- is, to put it bluntly, not true.  However desirable and however

desired by some among the great political thinkers and framers of our

government, it has never been generally practiced, today or in the past.

 It was not the English system, it was not the colonial system, it was

not the system chosen for the national government by the Constitution,

it was not the system exclusively or even predominantly practiced by the

States at the time of adoption of the Fourteenth Amendment, it is not

predominantly practiced by the States today.  Unless judges, the judges

of this Court, are to make their private views of political wisdom the

measure of the Constitution -- views which, in all honesty, cannot but

give the appearance, if not reflect the reality, of [369 U.S. 302]

involvement with the business of partisan politics so inescapably a part

of apportionment controversies -- the Fourteenth Amendment, "itself a

historical product," Jackman v. Rosenbaum Co., 260 U.S. 22, 31, provides

no guide for judicial oversight of the representation problem.



1. Great Britain.  Writing in 1958, Professor W. J. M. Mackenzie aptly

summarized the British history of the principle of representation

proportioned to population: "Equal electoral districts" formed part of

the programme of radical reform in England in the 1830's, the only part

of that programme which has not been realised.{33} Until the late

nineteenth century, the sole base of representation (with certain

exceptions not now relevant) was the local geographical unit:  each

county or borough returned its fixed number of members, usually two for

the English units, regardless of population.{34}  Prior to the Reform

Act of 1832, this system was marked by the almost total disfranchisement

of the populous northern industrial centers, which had grown to

significant size at the advent of the Industrial Revolution and had not

been granted borough representation, and by the existence of the rotten

borough, playing its substantial part in the Crown's struggle for

continued control of the Commons.{35}  In 1831, ten southernmost English

counties, numbering three and a quarter million people, had two hundred

and thirty-five parliamentary representatives, while the six

northernmost counties, with more than three and a half million people,

had sixty-eight.{36}  It was said that one hundred and eighty persons

appointed three hundred and [369 U.S. 303] fifty members in the

Commons.{37}  Less than a half century earlier, Madison, in the

Federalist, had remarked that half the House was returned by less than

six thousand of the eight million people of England and Scotland.{38}



The Act of 1832, the product of a fierce partisan political struggle and

the occasion of charges of gerrymandering not without foundation,{39}

effected eradication of only the most extreme numerical inequalities of

the unreformed system.  It did not adopt the principle of representation

based on population, but merely disfranchised certain among the rotten

borough and enfranchised most of the urban centers -- still quite

without regard to their relative numbers.{40}  In the wake of the Act,

there remained substantial electoral inequality:  the boroughs of

Cornwall were represented sixteen times as weightily, judged by

population, as the county's eastern division; the average ratio of seats

to population in ten agricultural counties was four and a half times

that in ten manufacturing divisions; Honiton, with about three thousand

inhabitants, was equally represented with Liverpool, which had four

hundred thousand.{41}  In 1866, apportionment by population began to be

advocated generally in the House, but was not made the basis of the

redistribution of 1867, although the act of that year did apportion

representation more evenly, gauged by the population standard.{42} 

Population shifts increased the surviving inequalities; by 1884, the

representation ratio [369 U.S. 304] in many small boroughs was more than

twenty-two times that of Birmingham or Manchester, forty-to-one

disparities could be found elsewhere, and, in sum, in the 1870's and

1880's, a fourth of the electorate returned two-thirds of the members of

the House.{43}



The first systematic English attempt to distribute seats by population

was the Redistribution Act of 1885.{44}  The statute still left ratios

of inequality of as much as seven to one,{45} which had increased to

fifteen to one by 1912.{46}  In 1918, Parliament again responded to

"shockingly bad" conditions of inequality,{47} and to partisan political

inspiration,{48} by redistribution.{49}  In 1944, redistribution was put

on a periodic footing by the House of Commons (Redistribution of Seats)

Act of that year,{50} which committed a continuing primary

responsibility for reapportioning the Commons to administrative agencies

(Boundary Commissions for England, Scotland, Wales and Northern Ireland,

respectively).{51}  The Commissions, having regard to certain rules

prescribed for their guidance, are to prepare at designated intervals

reports for the Home Secretary's submission to Parliament, along with

the draft of an Order in Council to give effect to the [369 U.S. 305]

Commissions' recommendations.  The districting rules adopt the basic

principle of representation by population, although the principle is

significantly modified by directions to respect local geographic

boundaries as far as practicable, and by discretion to take account of

special geographical conditions, including the size, shape and

accessibility of constituencies.  Under the original 1944 Act, the rules

provided that (subject to the exercise of the discretion respecting

special geographical conditions and to regard for the total size of the

House of Commons as prescribed by the Act) so far as practicable, the

single-member districts should not deviate more than twenty-five percent

from the electoral quota (population divided by number of

constituencies).  However, apparently at the recommendation of the

Boundary Commission for England, the twenty-five percent standard was

eliminated as too restrictive in 1947, and replaced by the flexible

provision that constituencies are to be as near the electoral quota as

practicable, a rule which is expressly subordinated both to the

consideration of special geographic conditions and to that of preserving

local boundaries.{52}  Free of the twenty-five percent rule, the

Commissions drew up plans of distribution in which inequalities among

the districts run, in ordinary cases, as high as two to one and, in the

case of a few extraordinary constituencies, three to one.{53}  The

action of the Boundary Commission for England was twice challenged in

the courts in 1954 -- the claim being that the Commission had violated

statutory rules [369 U.S. 306] prescribing the standards for its

judgment -- and, in both cases, the Judges declined to intervene.  In

Hammersmith Borough Council v. Boundary Commission for England,{54}

Harman, J., was of opinion that the nature of the controversy and the

scheme of the Acts made the matter inappropriate for judicial

interference, and in Harper v. Home Secretary,{55} the Court of Appeal,

per Evershed, M.R., quoting Harman, J., with approval, adverting to the

wide range of discretion entrusted to the Commission under the Acts, and

remarking the delicate character of the parliamentary issues in which it

was sought to engage the court, reached the same conclusion.{56}



The House of Commons (Redistribution of Seats) Act, 1958,{57} made two

further amendments to the law.  Responsive to the recommendation of the

Boundary Commission for England,{58} the interval permitted between

Commission reports was more than doubled, to a new maximum of fifteen

years.{59}  And at the suggestion of the same Commission that [i]t would

ease the future labours of the Commission and remove much local

irritation if Rule 5 [requiring that the electorate of each constituency

be as near the electoral quota as practicable] were to be so amended as

to allow us to make recommendations preserving the status quo in any

area where such a course appeared to be desirable and not inconsistent

[369 U.S. 307] with the broad intention of the Rules,{60} the

Commissions were directed to consider the inconveniences attendant upon

the alteration of constituencies, and the local ties which such

alteration might break.  The Home Secretary's view of this amendment was

that it worked to erect "a presumption against making changes unless

there is a very strong case for them."{61}



2. The Colonies and the Union.  For the guiding political theorists of

the Revolutionary generation, the English system of representation, in

its most salient aspects of numerical inequality, was a model to be

avoided, not followed.{62}  Nevertheless, the basic English principle of

apportioning representatives among the local governmental entities,

towns or counties, rather than among units of approximately equal

population, had early taken root in the colonies.{63}  In some, as in

Massachusetts and Rhode Island, numbers of electors were taken into

account, in a rough fashion, by allotting increasing fixed quotas of

representatives to several towns or classes of towns graduated by

population, but in most of the colonies, delegates were allowed to the

local units without respect to numbers.{64}  This resulted in grossly

unequal electoral units.{65}  The representation ratio in one North

Carolina county was more than eight times that, in another.{66} 

Moreover, American rotten boroughs had appeared,{67} and apportionment

was made an instrument first in the political [369 U.S. 308] struggles

between the King or the royal governors and the colonial

legislatures,{68} and, later, between the older tidewater regions in the

colonies and the growing interior.{69}  Madison, in the Philadelphia

Convention, adverted to the "inequality of the Representation in the

Legislatures of particular States, . . ."{70} arguing that it was

necessary to confer on Congress the power ultimately to regulate the

times, places and manner of selecting Representatives,{71} in order to

forestall the overrepresented counties' securing themselves a similar

overrepresentation in the national councils.  The example of South

Carolina, where Charleston's overrepresentation was a continuing bone of

contention between the tidewater and the back country, was cited by

Madison in the Virginia Convention and by King in the Massachusetts

Convention, in support of the same power, and King also spoke of the

extreme numerical inequality arising from Connecticut's town

representation system.{72}



Such inequalities survived the constitutional period.  The United States

Constitution itself did not largely adopt the principle of numbers. 

Apportionment of the national legislature among the States was one of

the most difficult problems for the Convention;{73} its solution --

involving State representation in the Senate{74} and the three-fifths

compromise in the House{75} -- left neither chamber apportioned

proportionately to population.  [369 U.S. 309] Within the States,

electoral power continued to be allotted to favor the tidewater.{76} 

Jefferson, in his Notes on Virginia, recorded the "very unequal"

representation there:  individual counties differing in population by a

ratio of more than seventeen to one elected the same number of

representatives, and those nineteen thousand of Virginia's fifty

thousand men who lived between the falls of the rivers and the seacoast

returned half the State's senators and almost half its delegates.{77} 

In South Carolina in 1790, the three lower districts, with a white

population of less than twenty-nine thousand, elected twenty senators

and seventy assembly members; while, in the uplands, more than one

hundred and eleven thousand white persons elected seventeen senators and

fifty-four assemblymen.{78}



In the early nineteenth century, the demands of the interior became more

insistent.  The apportionment quarrel in Virginia was a major factor in

precipitating the calling of a constitutional convention in 1829. 

Bitter animosities racked the convention, threatening the State with

disunion.  At last, a compromise which gave the three hundred and twenty

thousand people of the west thirteen senators, as against the nineteen

senators returned by the three hundred sixty-three thousand people of

the east, commanded agreement.  It was adopted at the polls, but left

the western counties so dissatisfied that there were threats of revolt

and realignment with the State of Maryland.{79}



Maryland, however, had her own numerical disproportions.  In 1820, one

representative vote in Calvert County [369 U.S. 310] was worth five in

Frederick County, and almost two hundred thousand people were

represented by eighteen members, while fifty thousand others elected

twenty.{80}  This was the result of the county representation system of

allotment.  And, except for Massachusetts, which, after a long struggle,

did adopt representation by population at the mid-century, a similar

town representation principle continued to prevail in various forms

throughout New England, with all its attendant, often gross,

inequalities.{81}



3. The States at the time of ratification of the Fourteenth Amendment,

and those later admitted.  The several state conventions throughout the

first half of the nineteenth century were the scenes of fierce sectional

and party strifes respecting the geographic allocation of

representation.{82}  Their product was a wide variety of apportionment

methods which recognized the element of population in differing ways and

degrees.  Particularly pertinent to appraisal of the contention that the

Fourteenth Amendment embodied a standard limiting the freedom of the

States with regard to the principles and bases of local legislative

apportionment is an examination of the apportionment provisions of the

thirty-three States which ratified the Amendment between 1866 and 1870,

at their respective times of ratification.  These may be considered in

two groups:  (A) the ratifying States other than the ten Southern States

whose constitutions, at the time of ratification or shortly thereafter,

were the work of the Reconstruction Act conventions;{83} and [369 U.S.

311] (B) the ten Reconstruction-Act States.  All thirty-three are

significant, because they demonstrate how unfounded is the assumption

that the ratifying States could have agreed on a standard apportionment

theory or practice, and how baseless the suggestion that, by voting for

the Equal Protection Clause, they sought to establish a test mold for

apportionment which -- if appellants' argument is sound -- struck down

sub silentio not a few of their own state constitutional provisions. 

But the constitutions of the ten Reconstruction Act States have an added

importance, for it is scarcely to be thought that the Congress which was

so solicitous for the adoption of the Fourteenth Amendment as to make

the readmission of the late rebel States to Congress turn on their

respective ratifications of it, would have approved constitutions which

-- again, under appellants' theory -- contemporaneously offended the

Amendment.



A. Of the twenty-three ratifying States of the first group, seven or

eight had constitutions which demanded or allowed apportionment of both

houses on the basis of population,{84} unqualifiedly or with only

qualifications respecting the preservation of local boundaries.{85} 

Three [369 U.S. 312] more apportioned on what was essentially a

population base, but provided that, in one house, counties having a

specified fraction of a ratio -- a moiety or two-thirds -- should have a

representative.{86}  Since each of these three States limited the size

of their chambers, the fractional rule could operate -- and, at least in

Michigan, has, in fact, operated{87} -- to produce substantial numerical

inequalities [369 U.S. 313] in favor of the sparsely populated

counties.{88}  Iowa favored her small counties by the rule that no more

than four counties might be combined in a representative district,{89}

and New York and Kansas compromised population and county representation

principles by assuring every county, regardless of the number of its

inhabitants, at least one seat in their respective Houses.{90}



Ohio and Maine recognized the factor of numbers by a different device. 

The former gave a House representative to each county having half a

ratio, two representatives for a ratio and three-quarters, three

representatives for three ratios, and a single additional representative

for each additional ratio.{91}  The latter, after apportioning among

counties on a population base, gave each town of fifteen hundred

inhabitants one representative, each town of three thousand, seven

hundred and fifty inhabitants two representatives, and so on in

increasing intervals to twenty-six thousand, two hundred and fifty

inhabitants -- towns of that size or larger receiving the maximum

permitted number of representatives:  seven.{92}  The departure from

numerical equality under these systems is apparent:  in Maine, assuming

the incidence of towns in [369 U.S. 314] all categories, representative

ratios would differ by factors of two and a half to one, at a minimum. 

Similarly, Missouri gave each of its counties, however small, one

representative, two representatives for three ratios, three

representatives for six ratios, and one additional representative for

each three ratios above six.{93}  New Hampshire allotted a

representative to each town of one hundred and fifty ratable male polls

of voting age and one more representative for each increment of three

hundred above that figure;{94} its Senate was not apportioned by

population, but among districts based on the proportion of direct taxes

paid.{95}  In Pennsylvania, the basis of apportionment in both houses

was taxable inhabitants, and in the House, every county of at least

thirty-five hundred taxables had a representative, nor could more than

three counties be joined in forming a representative district; while, in

the Senate, no city or county could have more than four of the State's

twenty-five to thirty-three senators.{96}



Finally, four States apportioned at least one House with no regard

whatever to population. In Connecticut,{97} and Vermont{98}

representation in the House was on a town basis; Rhode Island gave one

senator to each of its towns or cities,{99} and New Jersey one to each

of its counties.{100}  [369 U.S. 315] Nor, in any of these States, was

the other House apportioned on a strict principle of equal numbers: 

Connecticut gave each of its counties a minimum of two senators{101} and

Vermont, one;{102} New Jersey assured each county a representative;{103}

and, in Rhode Island, which gave at least one representative to each

town or city, no town or city could have more than one-sixth of the

total number in the House.{104}



B. Among the ten late Confederate States affected by the Reconstruction

Acts, in only four did it appear that apportionment of both state

legislative houses would or might be based strictly on population.{105} 

In North Carolina,{106} South Carolina,{107} Louisiana,{108} and

Alabama,{109} each county (in the case of Louisiana, each parish) was

assured at least one seat in the lower House irrespective of numbers --

a distribution which exhausted, respectively, [369 U.S. 316] on the

basis of the number of then-existing counties, three-quarters,

one-quarter, two-fifths and three-fifths of the maximum possible number

of representatives, before a single seat was available for assignment on

a population basis, and, in South Carolina, moreover, the Senate was

composed of one member elected from each county, except that Charleston

sent two.{110}  In Florida's House, each county had one seat guaranteed

and an additional seat for every thousand registered voters up to a

maximum of four representatives,{111} while Georgia, whose Senate seats

were distributed among forty-four single member districts each composed

of three contiguous counties,{112} assigned representation in its House

as follows:  three seats to each of the six most populous counties, two

to each of the thirty-one next most populous, one to each of the

remaining ninety-five.{113}  As might be expected, the "one

representative per county" minimum pattern has proved incompatible with

numerical equality,{114} and Georgia's [369 U.S. 317] county-clustering

system has produced representative ratio disparities, between the

largest and smallest counties, of more than sixty to one.{115}



C. The constitutions{116} of the thirteen States which Congress admitted

to the Union after the ratification of the Fourteenth Amendment showed a

similar pattern.  Six of them required or permitted apportionment of

both Houses by population, subject only to qualifications concerning

local boundaries.{117}  Wyoming, apportioning by population, guaranteed

to each of its counties at least one seat in each House,{118} and Idaho,

which prescribed (after the first legislative session) that

apportionment should be "as may be provided by law," gave each county at

least one representative.{119}  In Oklahoma, House members were

apportioned among counties so as to give one [369 U.S. 318] seat for

half a ratio, two for a ratio and three-quarters, and one for each

additional ratio up to a maximum of seven representatives per

county.{120}  Montana required reapportionment of its House on the basis

of periodic enumerations according to ratios to be fixed by law,{121}

but its counties were represented as counties in the Senate, each county

having one senator.{122}  Alaska{123} and Hawaii{124} each apportioned a

number of senators among constitutionally fixed districts; their

respective Houses were to be periodically reapportioned by population,

subject to a moiety rule in Alaska{125} and to Hawaii's guarantee of one

representative to each of four constitutionally designated areas.{126} 

The Arizona Constitution assigned representation to each county in each

house, giving one or two senators and from one to seven representatives

to each, and making no provision for reapportionment.{127} [369 U.S.

319]



4. Contemporary apportionment.  Detailed recent studies are available to

describe the present-day constitutional and statutory status of

apportionment in the fifty States.{128}  They demonstrate a decided

twentieth-century trend away from population as the exclusive base of

representation.  Today, only a dozen state constitutions provide for

periodic legislative reapportionment of both houses by a substantially

unqualified application of the population standard,{129} and only about

a dozen more prescribe such reapportionment for even a single chamber.

Specific provision for county representation in at least one house of

the state legislature has been increasingly adopted since the end of the

19th century.{130} More than twenty States now guarantee each county at

least one seat in one of their houses regardless of population, and in

nine others county or town units are given equal representation in one

legislative branch, whatever the number of each unit's inhabitants.  Of

course, numerically considered, "These provisions invariably result in

over-representation of the least populated areas."{131}  And in an

effort to curb the political dominance of metropolitan regions, at least

ten States now limit the maximum entitlement of any single county (or,

in some cases, city) [369 U.S. 320] in one legislative house -- another

source of substantial numerical disproportion.{132}



Moreover, it is common knowledge that the legislatures have not kept

reapportionment up to date, even where state constitutions in terms

require it.{133}  In particular, the pattern of according greater per

capita representation to rural, relatively sparsely populated areas --

the same pattern which finds expression in various state constitutional

provisions,{134} and which has been given effect in England and

elsewhere{135} -- has, in some of the States, been made the law by

legislative inaction in the face of [369 U.S. 321] population

shifts.{136}  Throughout the country, urban and suburban areas tend to

be given higher representation ratios than do rural areas.{137}



The stark fact is that, if, among the numerous widely varying principles

and practices that control state legislative apportionment today, there

is any generally prevailing feature, that feature is geographic

inequality in relation to the population standard.{138}  Examples could

be endlessly multiplied.  In New Jersey, counties of [369 U.S. 322]

thirty-five thousand and of more than nine hundred and five thousand

inhabitants respectively each have a single senator.{139} 

Representative districts in Minnesota range from 7,290 inhabitants to

107,246 inhabitants.{140}  Ratios of senatorial representation in

California vary as much as two hundred and ninety-seven to one.{141}  In

Oklahoma, the range is ten to one for House constituencies and roughly

sixteen to one for Senate constituencies.{142}  Colebrook, Connecticut

-- population 592 -- elects two House representatives; Hartford --

population 177,397 -- also elects two.{143}  The first, third and fifth

of these examples are the products of constitutional provisions which

subordinate population to regional considerations in apportionment; the

second is the result of legislative inaction; the fourth derives from

both constitutional and legislative sources.  A survey made in 1955, in

sum, reveals that less than thirty percent of the population inhabit

districts sufficient to elect a House majority in thirteen States and a

Senate majority in nineteen States.{144}  These figures show more than

individual variations from a generally accepted standard of electoral

equality.  They show that there is not -- as there has never been -- a

standard by [369 U.S. 323] which the place of equality as a factor in

apportionment can be measured.



Manifestly, the Equal Protection Clause supplies no clearer guide for

judicial examination of apportionment methods than would the Guarantee

Clause itself.  Apportionment, by its character, is a subject of

extraordinary complexity, involving -- even after the fundamental

theoretical issues concerning what is to be represented in a

representative legislature have been fought out or compromised --

considerations of geography, demography, electoral convenience, economic

and social cohesions or divergencies among particular local groups,

communications, the practical effects of political institutions like the

lobby and the city machine, ancient traditions and ties of settled

usage, respect for proven incumbents of long experience and senior

status, mathematical mechanics, censuses compiling relevant data, and a

host of others.{145}  [369 U.S. 324] Legislative responses throughout

the country to the reapportionment demands of the 1960 Census have

glaringly confirmed that these are not factors that lend themselves to

evaluations of a nature that are the staple of judicial determinations

or for which judges are equipped to adjudicate by legal training or

experience or native wit.  And this is the more so true because, in

every strand of this complicated, intricate web of values meet the

contending forces of partisan politics.{146}  The practical significance

of apportionment is that the next election results may differ because of

it.  Apportionment battles are overwhelmingly party or intra-party

contests.{147}  It will add a virulent source of friction and tension in

federal-state relations to embroil the federal judiciary in them.{148}

[369 U.S. 325] IV



Appellants, however, contend that the federal courts may provide the

standard which the Fourteenth Amendment lacks by reference to the

provisions of the constitution of Tennessee.  The argument is that,

although the same or greater disparities of electoral strength may be

suffered to exist immune from federal judicial review in States where

they result from apportionment legislation consistent with state

constitutions, the Tennessee Legislature may not abridge the rights

which, on its face, its own constitution appears to give, without by

that act denying equal protection of the laws.  It is said that the law

of Tennessee, as expressed by the words of its written constitution, has

made the basic choice among policies in favor of representation

proportioned to population, and that it is no longer open to the State

to allot its voting power on other principles.



This reasoning does not bear analysis.  Like claims invoking state

constitutional requirement have been rejected here, and for good reason.

 It is settled that whatever federal consequences may derive from a

discrimination worked by a state statute must be the same as if the same

discrimination were written into the [369 U.S. 326] State's fundamental

law.  Nashville, C. & St.L. R. Co. v. Browning, 310 U.S. 362.  And see

Castillo v. McConnico, 168 U.S. 674; Coulter v. Louisville & N. R. Co.,

196 U.S. 599, 608-609; Owensboro Waterworks Co. v. Owensboro, 200 U.S.

38; Hebert v. Louisiana, 272 U.S. 312, 316-317; Snowden v. Hughes, 321

U.S. 1, 11.  Appellants complain of a practice which, by their own

allegations, has been the law of Tennessee for sixty years.  They allege

that the Apportionment Act of 1901 created unequal districts when

passed, and still maintains unequal districts.  They allege that the

Legislature has, since 1901, purposefully retained unequal districts. 

And the Supreme Court of Tennessee has refused to invalidate the law

establishing these unequal districts.  Kidd v. McCanless, 200 Tenn. 273,

292 S.W.2d 40; appeal dismissed here in 352 U.S. 920.  In these

circumstances, what was said in the Browning case, supra, at 369,

clearly governs this case:



. . .  Here, according to petitioner's own claim, all the organs of the

state are conforming to a practice, systematic, unbroken for more than

forty years, and now questioned for the first time.  It would be a

narrow conception of jurisprudence to confine the notion of "laws" to

what is found written on the statute books, and to disregard the gloss

which life has written upon it.  Settled state practice cannot supplant

constitutional guarantees, but it can establish what is state law.  The

Equal Protection Clause did not write an empty formalism into the

Constitution.  Deeply embedded traditional ways of carrying out state

policy, such as those of which petitioner complains, are often tougher

and truer law than the dead words of the written text. . . .  [T]he

Equal Protection Clause is not a command of candor. . . . [369 U.S. 327]



Tennessee's law and its policy respecting apportionment are what 60

years of practice show them to be, not what appellants cull from the

unenforced and, according to its own judiciary, unenforceable words of

its Constitution.  The statute comes here on the same footing,

therefore, as would the apportionment laws of New Jersey, California or

Connecticut,{149} and is unaffected by its supposed repugnance to the

state constitutional language on which appellants rely.{150}



In another aspect, however, the Kidd v. McCanless case, supra,

introduces a factor peculiar to this litigation, which only emphasizes

the duty of declining the exercise of federal judicial jurisdiction.  In

all of the apportionment cases which have come before the Court, a

consideration which has been weighty in determining their

nonjusticiability has been the difficulty or impossibility of devising

effective judicial remedies in this class of case.  An injunction

restraining a general election unless the legislature reapportions would

paralyze the critical centers of a State's political system and threaten

political dislocation whose consequences are not foreseeable.  A

declaration devoid [369 U.S. 328] of implied compulsion of injunctive or

other relief would be an idle threat.{151}  Surely a Federal District

Court could not itself remap the State:  the same complexities which

impede effective judicial review of apportionment a fortiori make

impossible a court's consideration of these imponderables as an original

matter.  And the choice of elections at large, as opposed to elections

by district, however unequal the districts, is a matter of sweeping

political judgment having enormous political implications, the nature

and reach of which are certainly beyond the informed understanding of,

and capacity for appraisal by, courts.



In Tennessee, moreover, the McCanless case has closed off several among

even these unsatisfactory and dangerous modes of relief.  That case was

a suit in the state courts attacking the 1901 Reapportionment Act and

seeking a declaration and an injunction of the Act's enforcement or,

alternatively, a writ of mandamus compelling state election officials to

hold the elections at large, or, again alternatively, a decree of the

court reapportioning the State.  The Chancellor denied all coercive

relief, but entertained the suit for the purpose of rendering a

declaratory judgment.  It was his view that, despite an invalidation of

the statute under which the present legislature was elected, that body

would continue to possess de facto authority to reapportion, and that,

therefore, the maintaining of the suit did not threaten the disruption

of the government.  The Tennessee Supreme Court agreed that no coercive

relief could be granted; in particular, it said, "There is no provision

of law for election of our General Assembly by an election at large over

the State."  200 Tenn. at 277, 292 S.W.2d at 42.  Thus, a legislature

elected at [369 U.S. 329] large would not be the legally constituted

legislative authority of the State.  The court reversed, however, the

Chancellor's determination to give declaratory relief, holding that the

ground of demurrer which asserted that a striking down of the statute

would disrupt the orderly process of government should have been

sustained:



(4) It seems obvious, and we therefore hold, that, if the Act of 1901 is

to be declared unconstitutional, then the de facto doctrine cannot be

applied to maintain the present members of the General Assembly in

office.  If the Chancellor is correct in holding that this statute has

expired by the passage of the decade following its enactment, then, for

the same reason, all prior apportionment acts have expired by a like

lapse of time, and are nonexistent.  Therefore, we would not only not

have any existing members of the General Assembly, but we would have no

apportionment act whatever under which a new election could be held for

the election of members to the General Assembly. *    *    *    *



The ultimate result of holding this Act unconstitutional by reason of

the lapse of time would be to deprive us of the present Legislature and

the means of electing a new one and ultimately bring about the

destruction of the State itself. 200 Tenn. at 281-282, 292 S.W.2d at 44.



A federal court enforcing the Federal Constitution is not, to be sure,

bound by the remedial doctrines of the state courts.  But it must

consider as pertinent to the propriety or impropriety of exercising its

jurisdiction those state law effects of its decree which it cannot

itself control.  A federal court cannot provide the authority requisite

to make a legislature the proper governing body of the State of

Tennessee.  And it cannot be doubted that the striking [369 U.S. 330]

down of the statute here challenged on equal protection grounds, no less

than on grounds of failure to reapportion decennially, would deprive the

State of all valid apportionment legislation and -- under the ruling in

McCanless -- deprive the State of an effective law-based legislative

branch.  Just such considerations, among others here present, were

determinative in Luther v. Borden and the Oregon initiative cases.{152}



Although the District Court had jurisdiction in the very restricted

sense of power to determine whether it could adjudicate the claim, the

case is of that class of political controversy which, by the nature of

its subject, is unfit for federal judicial action.  The judgment of the

District Court, in dismissing the complaint for failure to state a claim

on which relief can be granted, should therefore be affirmed. HARLAN,

J., dissenting



Dissenting opinion of MR. JUSTICE HARLAN, whom MR. JUSTICE FRANKFURTER

joins.



The dissenting opinion of MR. JUSTICE FRANKFURTER, in which I join,

demonstrates the abrupt departure the majority makes from judicial

history by putting the federal courts into this area of state concerns

-- an area which, in this instance, the Tennessee state courts

themselves have refused to enter.



It does not detract from his opinion to say that the panorama of

judicial history it unfolds, though evincing a steadfast underlying

principle of keeping the federal courts out of these domains, has a

tendency, because of variants in expression, to becloud analysis in a

given case.  With due respect to the majority, I think that has happened

here.



Once one cuts through the thicket of discussion devoted to

"jurisdiction," "standing," "justiciability," and "political [369 U.S.

331] question," there emerges a straightforward issue which, in my view,

is determinative of this case.  Does the complaint disclose a violation

of a federal constitutional right, in other words, a claim over which a

United States District Court would have jurisdiction under 28 U.S.C. 

1343(3) and 42 U.S.C.  1983?  The majority opinion does not actually

discuss this basic question, but, as one concurring Justice observes,

seems to decide it "sub silentio."  Ante,   However, in my opinion,

appellants' allegations, accepting all of them as true, do not, parsed

down or as a whole, show an infringement by Tennessee of any rights

assured by the Fourteenth Amendment.  Accordingly, I believe the

complaint should have been dismissed for "failure to state a claim upon

which relief can be granted."  Fed.Rules Civ.Proc., Rule 12(b)(6).



It is at once essential to recognize this case for what it is.  The

issue here relates not to a method of state electoral apportionment by

which seats in the federal House of Representatives are allocated, but

solely to the right of a State to fix the basis of representation in its

own legislature.  Until it is first decided to what extent that right is

limited by the Federal Constitution, and whether what Tennessee has done

or failed to do in this instance runs afoul of any such limitation, we

need not reach the issues of "justiciability" or "political question" or

any of the other considerations which in such cases as Colegrove v.

Green, 328 U.S. 549, led the Court to decline to adjudicate a challenge

to a state apportionment affecting seats in the federal House of

Representatives, in the absence of a controlling Act of Congress.  See

also Wood v. Broom, 287 U.S. 1.



The appellants' claim in this case ultimately rests entirely on the

Equal Protection Clause of the Fourteenth Amendment.  It is asserted

that Tennessee has violated the Equal Protection Clause by maintaining,

in effect, a [369 U.S. 332] system of apportionment that grossly favors

in legislative representation the rural sections of the State as against

its urban communities.  Stripped to it's essentials, the complaint

purports to set forth three constitutional claims of varying breadth:



(1) The Equal Protection Clause requires that each vote cast in state

legislative elections be given approximately equal weight.



(2) Short of this, the existing apportionment of state legislators is so

unreasonable as to amount to an arbitrary and capricious act of

classification on the part of the Tennessee Legislature, which is

offensive to the Equal Protection Clause.



(3) In any event, the existing apportionment is rendered invalid under

the Fourteenth Amendment because it flies in the face of the Tennessee

Constitution. For reasons given in MR. JUSTICE FRANKFURTER's opinion,

ante pp.  the last of these propositions is manifestly untenable, and

need not be dealt with further.  I turn to the other two. I



I can find nothing in the Equal Protection Clause or elsewhere in the

Federal Constitution which expressly or impliedly supports the view that

state legislatures must be so structured as to reflect with approximate

equality the voice of every voter.  Not only is that proposition refuted

by history, as shown by my Brother FRANKFURTER, but it strikes deep into

the heart of our federal system.  Its acceptance would require us to

turn our backs on the regard which this Court has always shown for the

judgment of state legislatures and courts on matters of basically local

concern [369 U.S. 333]



In the last analysis, what lies at the core of this controversy is a

difference of opinion as to the function of representative government. 

It is surely beyond argument that those who have the responsibility for

devising a system of representation may permissibly consider that

factors other than bare numbers should be taken into account.  The

existence of the United States Senate is proof enough of that.  To

consider that we may ignore the Tennessee Legislature's judgment in this

instance because that body was the product of an asymmetrical electoral

apportionment would, in effect, be to assume the very conclusion here

disputed.  Hence, we must accept the present form of the Tennessee

Legislature as the embodiment of the State's choice, or, more

realistically, its compromise, between competing political philosophies.

 The federal courts have not been empowered by the Equal Protection

Clause to judge whether this resolution of the State's internal

political conflict is desirable or undesirable, wise or unwise.



With respect to state tax statutes and regulatory measures, for example,

it has been said that the day is gone when this Court uses the . . .

Fourteenth Amendment to strike down state laws . . . because they may be

unwise, improvident, or out of harmony with a particular school of

thought. Williamson v. Lee Optical Co., 348 U.S. 483, 488.  I would

think it all the more compelling for us to follow this principle of

self-restraint when what is involved is the freedom of a State to deal

with so intimate a concern as the structure of its own legislative

branch.  The Federal Constitution imposes no limitation on the form

which a state government may take other than generally committing to the

United States the duty to guarantee to every State "a Republican Form of

Government."  And, as my Brother FRANKFURTER so conclusively proves

(ante pp. , no intention to fix immutably the [369 U.S. 334] means of

selecting representatives for state governments could have been in the

minds of either the Founders or the draftsmen of the Fourteenth

Amendment.



In short, there is nothing in the Federal Constitution to prevent a

State, acting not irrationally, from choosing any electoral legislative

structure it thinks best suited to the interests, temper, and customs of

its people.  I would have thought this proposition settled by MacDougall

v. Green, 335 U.S. 281, in which the Court observed (at p. 283) that to

"assume that political power is a function exclusively of numbers is to

disregard the practicalities of government," and reaffirmed by South v.

Peters, 339 U.S. 276.  A State's choice to distribute electoral strength

among geographical units, rather than according to a census of

population, is certainly no less a rational decision of policy than

would be its choice to levy a tax on property, rather than a tax on

income.  Both are legislative judgments entitled to equal respect from

this Court. II



The claim that Tennessee's system of apportionment is so unreasonable as

to amount to a capricious classification of voting strength stands up no

better under dispassionate analysis.



The Court has said time and again that the Equal Protection Clause does

not demand of state enactments either mathematical identity or rigid

equality.  E.g., Allied Stores of Ohio v. Bowers, 358 U.S. 522, 527-528,

and authorities there cited; McGowan v. Maryland, 366 U.S. 420,   All

that is prohibited is "invidious discrimination" bearing no rational

relation to any permissible policy of the State.  Williamson v. Lee

Optical Co., supra, at 489.  And in deciding whether such discrimination

has been practiced by a State, it must be borne in mind that a

"statutory discrimination will not be set aside if any state of facts

reasonably may be conceived [369 U.S. 335] to justify it."  McGowan v.

Maryland, supra.  It is not inequality alone that calls for a holding of

unconstitutionality; only if the inequality is based on an impermissible

standard may this Court condemn it.



What then is the basis for the claim made in this case that the

distribution of state senators and representatives is the product of

capriciousness or of some constitutionally prohibited policy?  It is not

that Tennessee has arranged its electoral districts with a deliberate

purpose to dilute the voting strength of one race, cf. Gomillion v.

Lightfoot, 364 U.S. 339, or that some religious group is intentionally

underrepresented.  Nor is it a charge that the legislature has indulged

in sheer caprice by allotting representatives to each county on the

basis of a throw of the dice, or of some other determinant bearing no

rational relation to the question of apportionment.  Rather, the claim

is that the State Legislature has unreasonably retained substantially

the same allocation of senators and representatives as was established

by statute in 1901, refusing to recognize the great shift in the

population balance between urban and rural communities that has occurred

in the meantime.



It is further alleged that, even as of 1901, the apportionment was

invalid in that it did not allocate state legislators among the counties

in accordance with the formula set out in Art. II,  5, of the Tennessee

Constitution.  In support of this, the appellants have furnished a Table

which indicates that, as of 1901, six counties were overrepresented and

11 were underrepresented. But that Table, in fact, shows nothing in the

way of significant discrepancy; in the instance of each county, it is

only one representative who is either lacking or added.  And it is

further perfectly evident that the variations are attributable to

nothing more than the circumstance that the then enumeration of voters

resulted in fractional remainders with respect to which the precise

formula of the Tennessee Constitution was, in some [369 U.S. 336]

instances, slightly disregarded.  Unless such de minimis departures are

to be deemed of significance, these statistics certainly provide no

substantiation for the charge that the 1901 apportionment was arbitrary

and capricious.  Indeed, they show the contrary.



Thus, reduced to its essentials, the charge of arbitrariness and

capriciousness rests entirely on the consistent refusal of the Tennessee

Legislature over the past 60 years to alter a pattern of apportionment

that was reasonable when conceived.



A Federal District Court is asked to say that the passage of time has

rendered the 1901 apportionment obsolete to the point where its

continuance becomes vulnerable under the Fourteenth Amendment.  But is

not this matter one that involves a classic legislative judgment? 

Surely it lies within the province of a state legislature to conclude

that an existing allocation of senators and representatives constitutes

a desirable balance of geographical and demographical representation, or

that, in the interest of stability of government, it would be best to

defer for some further time the redistribution of seats in the state

legislature.



Indeed, I would hardly think it unconstitutional if a state

legislature's expressed reason for establishing or maintaining an

electoral imbalance between its rural and urban population were to

protect the State's agricultural interests from the sheer weight of

numbers of those residing in its cities.  A State may, after all, take

account of the interests of its rural population in the distribution of

tax burdens, e.g., American Sugar Rfg. Co. v. Louisiana, 179 U.S. 89,

and recognition of the special problems of agricultural interests has

repeatedly been reflected in federal legislation, e.g., Capper-Volstead

Act, 42 Stat. 388; Agricultural Adjustment Act of 1938, 52 Stat. 31. 

Even the exemption of agricultural activities from state criminal

statutes of otherwise general application has not been deemed offensive

to the Equal Protection Clause.  [369 U.S. 337] Tigner v. Texas, 310

U.S. 141.  Does the Fourteenth Amendment impose a stricter limitation

upon a State's apportionment of political representatives to its central

government?  I think not.  These are matters of local policy, on the

wisdom of which the federal judiciary is neither permitted nor qualified

to sit in judgment.



The suggestion of my Brother FRANKFURTER that courts lack standards by

which to decide such cases as this is relevant not only to the question

of "justiciability," but also, and perhaps more fundamentally, to the

determination whether any cognizable constitutional claim has been

asserted in this case.  Courts are unable to decide when it is that an

apportionment originally valid becomes void because the factors entering

into such a decision are basically matters appropriate only for

legislative judgment.  And so long as there exists a possible rational

legislative policy for retaining an existing apportionment, such a

legislative decision cannot be said to breach the bulwark against

arbitrariness and caprice that the Fourteenth Amendment affords. 

Certainly, with all due respect, the facile arithmetical argument

contained in Part II of my Brother CLARK's separate opinion (ante, pp. 

provides no tenable basis for considering that there has been such a

breach in this instance.  (See the Appendix to this opinion.)



These conclusions can hardly be escaped by suggesting that capricious

state action might be found were it to appear that a majority of the

Tennessee legislators, in refusing to consider reapportionment, had been

actuated by self-interest in perpetuating their own political offices or

by other unworthy or improper motives.  Since Fletcher v. Peck, 6 Cranch

87, was decided many years ago, it has repeatedly been pointed out that

it is not the business of the federal courts to inquire into the

personal motives of legislators.  E.g., Arizona v. California, 283 U.S.

423, 455 & n. 7.  The function of the federal judiciary ends in [369

U.S. 338] matters of this kind once it appears, as I think it does here

on the undisputed facts, that the state action complained of could have

rested on some rational basis.  (See the Appendix to this opinion.)



It is my view that the majority opinion has failed to point to any

recognizable constitutional claim alleged in this complaint.  Indeed, it

is interesting to note that my Brother STEWART is at pains to disclaim

for himself, and to point out that the majority opinion does not

suggest, that the Federal Constitution requires of the States any

particular kind of electoral apportionment, still less that they must

accord to each voter approximately equal voting strength.  Concurring

opinion, ante,   But that being so, what, may it be asked, is left of

this complaint?  Surely the bare allegations that the existing Tennessee

apportionment is "incorrect," "arbitrary," "obsolete" and

"unconstitutional" -- amounting to nothing more than legal conclusions

-- do not themselves save the complaint from dismissal.  See Snowden v.

Hughes, 321 U.S. 1; Collins v. Hardyman, 341 U.S. 651.  Nor do those

allegations shift to the appellees the burden of proving the

constitutionality of this state statute; as is so correctly emphasized

by my Brother STEWART (ante, p. 266), this Court has consistently held

in cases.arising under the Equal Protection Clause that "the burden of

establishing the unconstitutionality of a statute rests on him who

assails it."  Metropolitan Casualty Ins. Co. v. Brownell, 294 U.S. 580,

584. (Emphasis added.)  Moreover, the appellants do not suggest that

they could show at a trial anything beyond the matters previously

discussed in this opinion, which add up to nothing in the way of a

supportable constitutional challenge against this statute.  And finally,

the majority's failure to come to grips with the question whether the

complaint states a claim cognizable under the Federal Constitution -- an

issue necessarily presented by appellees' motion to dismiss -- [369 U.S.

339] does not, of course, furnish any ground for permitting this action

to go to trial.



From a reading of the majority and concurring opinions one will not find

it difficult to catch the premises that underlie this decision.  The

fact that the appellants have been unable to obtain political redress of

their asserted grievances appears to be regarded as a matter which

should lead the Court to stretch to find some basis for judicial

intervention.  While the Equal Protection Clause is invoked, the opinion

for the Court notably eschews explaining how, consonant with past

decisions, the undisputed facts in this case can be considered to show a

violation of that constitutional provision.  The majority seems to have

accepted the argument, pressed at the bar, that, if this Court merely

asserts authority in this field, Tennessee and other "malapportioning"

States will quickly respond with appropriate political action, so that

this Court need not be greatly concerned about the federal courts

becoming further involved in these matters.  At the same time, the

majority has wholly failed to reckon with what the future may hold in

store if this optimistic prediction is not fulfilled.  Thus, what the

Court is doing reflects more an adventure in judicial experimentation

than a solid piece of constitutional adjudication.  Whether dismissal of

this case should have been for want of jurisdiction or, as is suggested

in Bell v. Hood, 327 U.S. 678,  for failure of the complaint to state a

claim upon which relief could be granted, the judgment of the District

Court was correct.



In conclusion, it is appropriate to say that one need not agree, as a

citizen, with what Tennessee has done or failed to do in order to

deprecate, as a judge, what the majority is doing today.  Those

observers of the Court who see it primarily as the last refuge for the

correction of all inequality or injustice, no matter what its nature or

source, will no doubt applaud this decision and its break [369 U.S. 340]

with the past.  Those who consider that continuing national respect for

the Court's authority depends in large measure upon its wise exercise of

self-restraint and discipline in constitutional adjudication will view

the decision with deep concern.



I would affirm. APPENDIX TO OPINION OF MR. JUSTICE HARLAN THE INADEQUACY

OF ARITHMETICAL FORMULAS  AS MEASURES OF THE RATIONALITY OF TENNESSEE'S

APPORTIONMENT



Two of the three separate concurring opinions appear to concede that the

Equal Protection Clause does not guarantee to each state voter a vote of

approximately equal weight for the State Legislature.  Whether the

existing Tennessee apportionment is constitutional is recognized to

depend only on whether it can find "any possible justification in

rationality" (ante, p. 265); it is to be struck down only if "the

discrimination here does not fit any pattern" (ante, p. 258).



One of the concurring opinions, that of my Brother STEWART, suggests no

reasons which would justify a finding that the present distribution of

state legislators is unconstitutionally arbitrary.  The same is true of

the majority opinion.  My Brother CLARK, on the other hand, concludes

that "the apportionment picture in Tennessee is a topsy-turvical of

gigantic proportions" (ante, p. 254), solely on the basis of certain

statistics presented in the text of his separate opinion and included in

a more extensive Table appended thereto.  In my view, that analysis is

defective not only because the "total representation" formula set out in

footnote 7 of the opinion (ante, p. 255), rests on faulty mathematical

foundations, but, more basically, because the approach taken wholly [369

U.S. 341] ignores all other factors justifying a legislative

determination of the sort involved in devising a proper apportionment

for a State Legislature.



In failing to take any of such other matters into account and in

focusing on a particular mathematical formula which, as will be shown,

is patently unsound, my Brother CLARK's opinion has, I submit,

unwittingly served to bring into bas-relief the very reasons that

support the view that this complaint does not state a claim on which

relief could be granted.  For in order to warrant holding a state

electoral apportionment invalid under the Equal Protection Clause, a

court, in line with well established constitutional doctrine, must find

that none of the permissible policies and none of the possible formulas

on which it might have been based could rationally justify particular

inequalities. I



At the outset, it cannot be denied that the apportionment rules

explicitly set out in the Tennessee Constitution are rational.  These

rules are based on the following obviously permissible policy

determinations:  (1) to utilize counties as electoral units; (2) to

prohibit the division of any county in the composition of electoral

districts; (3) to allot to each county that has a substantial voting

population -- at least two-thirds of the average voting population per

county -- a separate "direct representative"; (4) to create "floterial"

districts (multi-county representative districts) made up of more than

one county, and (5) to require that such districts be composed of

adjoining counties.  Such a framework unavoidably [369 U.S. 342] leads

to unreliable arithmetic inequalities under any mathematical formula

whereby the counties' "total representation" is sought to be measured. 

It particularly results in egregiously deceptive disparities if the

formula proposed in my Brother CLARK's opinion is applied.



That formula computes a county's "total representation" by adding (1)

the number of "direct representatives" the county is entitled to elect;

(2) a fraction of any other seats in the Tennessee House which are

allocated to that county jointly with one or more others in a "floterial

district"; (3) triple the number of senators the county is entitled to

elect alone, and (4) triple a fraction of any seats in the Tennessee

Senate which are allocated to that county jointly with one or more

others in a multi-county senatorial district.  The fractions used for

items (2) and (4) are computed by allotting to each county in a combined

district an equal share of the House or Senate seat, regardless of the

voting population of each of the counties that make up the election

district. [369 U.S. 343]



This formula is patently deficient in that it eliminates from

consideration the relative voting power of the counties that are joined

together in a single election district.  As a result, the formula

unrealistically assigns to Moore County one-third of a senator, in

addition to its direct representative (ante, p. 255), although it must

be obvious that Moore's voting strength in the Eighteenth Senatorial

District is almost negligible.  Since Moore County could cast only 2,340

votes of a total eligible vote of 30,478 in the senatorial district, it

should in truth be considered as represented by one-fifteenth of a

senator.  Assuming, arguendo, that any "total representation" figure is

of significance, Moore's "total representation" should be 1.23, not 2.



The formula suggested by my Brother CLARK must be adjusted regardless

whether one thinks, as I assuredly do not, that the Federal Constitution

requires that each vote be given equal weight.  The correction is

necessary simply to reflect the real facts of political life.  It may,

of course, be true that the floterial representative's "function [369

U.S. 344] is to represent the whole district" (ante, p. 256).  But can

it be gainsaid that, so long as elections within the district are

decided not by a county unit system, in which each county casts one

vote, but, by adding the total number of individual votes cast for each

candidate, the concern of the elected representatives will primarily be

with the most populous counties in the district? II



I do not mean to suggest that any mathematical formula, albeit an

"adjusted" one, would be a proper touchstone to measure the rationality

of the present or of appellants' proposed apportionment plan.  For, as

the Table appended to my Brother CLARK's opinion so conclusively shows,

whether one applies the formula he suggests or one that is adjusted to

reflect proportional voting strength within an election district, no

plan of apportionment consistent with the principal policies of the

Tennessee Constitution could provide proportionately equal "total

representation" for each of Tennessee's 95 counties.  The pattern

suggested by the appellants in Exhibits "A" and "B" attached to their

complaint is said to be a "fair distribution" which accords with the

Tennessee Constitution, and under which each of the election districts

represents approximately equal voting population.  But even when tested

by the "adjusted" formula, the plan reveals gross "total representation"

disparities that would make it appear to be a "crazy quilt."  For

example, Loudon County, with twice the voting population of Humphreys

County, would have less representation than Humphreys and about

one-third the representation of Warren County, which has only 73 more

voters.  Among the more populous counties, similar discrepancies would

appear.  Although Anderson County has only somewhat over 10% more voters

than Blount County, it would have [369 U.S. 345] approximately 75% more

representation.  And Blount would have approximately two-thirds the

representation of Montgomery County, which has about 13% less voters.

III



The fault with a purely statistical approach to the case at hand lies

not with the particular mathematical formula used, but in the failure to

take account of the fact that a multitude of legitimate legislative

policies, along with circumstances of geography and demography, could

account for the seeming electoral disparities among counties.  The

principles set out in the Tennessee Constitution are just some of those

that were deemed significant.  Others may have been considered and

accepted by those entrusted with the responsibility for Tennessee's

apportionment.  And, for the purposes of judging constitutionality under

the Equal Protection Clause, it must be remembered that what is

controlling on the issue of "rationality" is not what the State

Legislature may actually have considered, but what it may be deemed to

have considered.



For example, in the list of "horribles" cited by my Brother CLARK (ante,

p. 255), all the "underrepresented" counties are semi-urban:  all

contain municipalities of over 10,000 population.  This is not to say,

however, that the [369 U.S. 346] presence of any such municipality

within a county necessarily demands that its proportional representation

be reduced in order to render it consistent with an "urban versus rural"

plan of apportionment.  Other considerations may intervene and outweigh

the Legislature's desire to distribute seats so as to achieve a proper

balance between urban and rural interests.  The size of a county, in

terms of its total area, may be a factor.  Or the location within a

county of some major industry may be thought to call for dilution of

voting strength.  Again, the combination of certain smaller counties

with their more heavily populated neighbors in senatorial or "floterial"

districts may result in apparent arithmetic inequalities.



More broadly, the disparities in electoral strength among the various

counties in Tennessee, both those relied upon by my Brother CLARK and

others, may be [369 U.S. 347] accounted for by various economic,

political,{10} and geographic{11} considerations.  No allegation is made

by the appellants that the existing apportionment is the result of any

other forces than are always at work in any legislative process, and the

record, briefs, and arguments in this Court themselves attest to the

fact that the appellants could put forward nothing further at a trial.



By disregarding the wide variety of permissible legislative

considerations that may enter into a state electoral apportionment, my

Brother CLARK has turned a highly complex process into an elementary

arithmetical puzzle.  [369 U.S. 348] It is only by blinking reality that

such an analysis can stand and that the essentially legislative

determination can be made the subject of judicial inquiry. IV



Apart from such policies as those suggested which would suffice to

justify particular inequalities, there is a further consideration which

could rationally have led the Tennessee Legislature, in the exercise of

a deliberate choice, to maintain the status quo.  Rigidity of an

apportionment pattern may be as much a legislative policy decision as is

a provision for periodic reapportionment.  In the interest of stability,

a State may write into its fundamental law a permanent distribution of

legislators among its various election districts, thus forever ignoring

shifts in population.  Indeed, several States have achieved this result

by providing for minimum and maximum representation from various

political subdivisions such as counties, districts, cities, or towns.  

See Harvey, Reapportionments of State Legislatures -- Legal

Requirements, 17 Law & Contemp.Probs. (1952), 364, 368-372.



It is said that one cannot find any rational standard in what the

Tennessee Legislature has failed to do over the past 60 years.  But

surely one need not search far to find rationality in the Legislature's

continued refusal to recognize the growth of the urban population that

has accompanied the development of industry over the past half decade. 

The existence of slight disparities between rural areas does not

overcome the fact that the foremost apparent legislative motivation has

been to preserve the electoral strength of the rural interests

notwithstanding shifts in population.  And I understand it to be

conceded by at least some of the majority that this policy is not [369

U.S. 349] rendered unconstitutional merely because it favors rural

voters.



Once the electoral apportionment process is recognized for what it is --

the product of legislative give-and-take and of compromise among

policies that often conflict -- the relevant constitutional principles

at once put these appellants out of the federal courts. Footnotes

BRENNAN, J., lead opinion (Footnotes)



1. Public Acts of Tennessee, c. 122 (1901), now Tenn.Code Ann.  3-101 to

3-107.  The full text of the 1901 Act as amended appears in an Appendix

to this opinion, post, p. 237



2. The three-judge court was convened pursuant to the order of a single

district judge, who, after he had reviewed certain decisions of this

Court and found them distinguishable in features "that may ultimately

prove to be significant," held that the complaint was not so obviously

without merit that he would be justified in refusing to convene a

three-judge court.  175 F.Supp. 649, 652.



3. We heard argument first at the 1960 Term and again at this Term, when

the case was set over for reargument.  366 U.S. 907.



4. A county having less than, but at least two-thirds of, the population

required to choose a Representative is allocated one Representative. 

See also Tenn.Const., Art. II,  6.  A common and much more substantial

departure from the "number of voters" or "total population" standard is

the guaranty of at least one seat to each county.  See, e.g., Kansas

Const., Art. 2,  2; N.J.Const., Art. 4,  3,  1.



While the Tennessee Constitution speaks of the number of "qualified

voters," the exhibits attached to the complaint use figures based on the

number of persons 21 years of age and over.  This basis seems to have

been employed by the General Assembly in apportioning legislative seats

from the outset.  The 1870 statute providing for the first enumeration,

Acts of 1870 (1st Sess.), c. 107, directed the courts of the several

counties to select a Commissioner to enumerate all the male inhabitants

of their respective counties, who are twenty-one years of age and

upward, who shall be resident citizens of their counties on the first

day of January, 1871. . . . Reports compiled in the several counties on

this basis were submitted to the General Assembly by the Secretary of

State and were used in the first apportionment.  Appendix to Tenn.S.J.,

1871, 41-43.  Yet such figures would not reflect the numbers of persons

qualified to exercise the franchise under the then-governing

qualifications:  (a) citizenship; (b) residence in the State 12 months,

and in the county 6 months; (c) payment of poll taxes for the preceding

year unless entitled to exemption.  Acts of 1870 (2d Sess.), c. 10. 

(These qualifications continued at least until after 1901.  See

Shan.Tenn.Code Ann.,  1167, 1220 (1896; supp. 1904).)  Still, when the

General Assembly directed the Secretary of State to do all he could to

obtain complete reports from the counties, the Resolution spoke broadly

of "the impossibility of . . . [redistricting] without the census

returns of the voting population from each county. . . ."  Tenn.S.J.,

1871, 46 47, 96.  The figures also showed a correlation with Federal

Census figures for 1870.  The Census reported 259,016 male citizens 21

and upward in Tennessee.  Ninth Census of the United States, 1870,

Statistics of the Population 635 (1872).  The Tennessee Secretary of

State's Report, with 15 counties not reported, gave a figure of 237,431.

 Using the numbers of actual votes in the last gubernatorial election

for those 15 counties, the Secretary arrived at a total of 250,025. 

Appendix to Tenn.S.J., 1871, 41-43.  This and subsequent history

indicate continued reference to Census figures, and finally, in 1901,

abandonment of a state enumeration in favor of the use of Census

figures.  See notes 7, 8, 9, infra.  See also Williams, Legislative

Apportionment in Tennessee, 20 Tenn.L.Rev. 235, 236, n. 6.  It would

therefore appear that, unless there is a contrary showing at the trial,

appellants' current figures, taken from the United States Census

Reports, are apposite.



5. Acts of 1871 (1st Sess.), c. 146.



6. Act of 1870 (1st Sess.), c. 107.



7. The statute authorizing the enumeration was Acts of 1881 (1st Sess.),

c. 124.  The enumeration commissioners in the counties were allowed

access to the U.S. Census Reports of the enumeration of 1880, on file in

the offices of the County Court Clerks of the State, and a reference to

said reports by said commissioners shall be legitimate as an auxiliary

in the enumeration required. . . Ibid.,  4.



The United States Census reported 330,305 male citizens 21 and upward in

Tennessee.  The Tenth Census of the United States, 1880, Compendium 596

(1883).  The Tennessee Secretary of State's Report gave a figure of

343,817, Tenn.H.J. (1st Extra.Sess.), 1881, 12-14 (1882).



The General Assembly was enlarged in accordance with the constitutional

mandate, since the State's population had passed 1,500,000.  Acts of

1881 (1st Extra.Sess.), c. 5, and see, id., S.J.Res. No. III; see also

Tenth Census of the United States, 1880, Statistics of the Population 77

(1881).  The statute apportioning the General Assembly was Acts of 1881

(1st Extra.Sess.), c. 6.



8. Acts of 1891, c. 22; Acts of 1891 (Extra.Sess.), c. 10.  Reference to

United States Census figures was allowed just as in 1881, see supra, n.

7.  The United States Census reported 402,476 males 21 and over in

Tennessee.  The Eleventh Census of the United States, 1890, Population

(Part I) 781 (1895).  The Tennessee Secretary of State's Report gave a

figure of 399,575.  1 Tenn.S.J., 1891, 473 474.



9. Acts of 1901, S.J.Res. No. 35; Acts of 1901, c. 122.  The Joint

Resolution said: The Federal census of 1900 has been very recently

taken, and, by reference to said Federal census, an accurate enumeration

of the qualified voters of the respective counties of the State of

Tennessee can be ascertained, and thereby save the expense of an actual

enumeration. . . .



10. For the history of legislative apportionment in Tennessee, including

attempts made since 1901, see Tenn.S.J., 1959, 909-930; and "A

Documented Survey of Legislative Apportionment in Tennessee, 1870-1957,"

which is attached as exhibit 2 to the intervening complaint of Mayor

West of Nashville, both prepared by the Tennessee State Historian, Dr.

Robert H. White.  Examples of preliminary steps are:  in 1911, the

Senate called upon the Redistricting Committee to make an enumeration of

qualified voters and to use the Federal Census of 1910 as the basis. 

Acts of 1911, S.J.Res. No. 60, p. 315.  Similarly, in 1961, the Senate

called for appointment of a select committee to make an enumeration of

qualified voters.  Acts of 1961, S.J.Res. No. 47.  In 1955, the Senate

called for a study of reapportionment.  Tenn.S.J., 1955, 224; but see

id. at 1403.  Similarly, in 1961, the House directed the State

Legislative Council to study methods of reapportionment.  Acts of 1961,

H.J.Res. No. 65.



11. Twelfth Census of the United States, 1900, Population (Part 1) 39

(1901); (Part 2) 202 (1902).



12. United States Census of Population:1960, General Population

Characteristics -- Tennessee, Table 16 (1961).



13. In the words of one of the intervening complaints, the apportionment

was "wholly arbitrary, . . . and, indeed, based upon no lawfully

pertinent factor whatever."



14. The appellants claim that no General Assembly constituted according

to the 1901 Act will submit reapportionment proposals either to the

people or to a Constitutional Convention.  There is no provision for

popular initiative in Tennessee.  Amendments proposed in the Senate or

House must first be approved by a majority of all members of each House

and again by two-thirds of the members in the General Assembly next

chosen.  The proposals are then submitted to the people at the next

general election in which a Governor is to be chosen.  Alternatively,

the legislature may submit to the people at any general election the

question of calling a convention to consider specified proposals.  Such

as are adopted at a convention do not, however, become effective unless

approved by a majority of the qualified voters voting separately on each

proposed change or amendment at an election fixed by the convention. 

Conventions shall not be held oftener than once in six years. 

Tenn.Const., Art. XI,  3.  Acts of 1951, C. 130,  3, and Acts of 1957,

G. 340,  3, provided that delegates to the 1953 and 1959 conventions

were to be chosen from the counties and floterial districts just as are

members of the State House of Representatives.  The General Assembly's

call for a 1953 Constitutional Convention originally contained a

provision "relating to the appointment [sic] of representatives and

senators," but this was excised.  Tenn.H.J., 1951, 784.  A Resolution

introduced at the 1959 Constitutional Convention and reported

unfavorably by the Rules Committee of the Convention was as follows:



By Mr. Chambliss (of Hamilton County), Resolution No. 12 -- Relative to

Convention considering reapportionment, which is as follows:



WHEREAS, there is a rumor that this Limited Convention has been called

for the purpose of postponing for six years a Convention that would make

a decision as to reapportionment; and WHEREAS there is pending in the

United States Courts in Tennessee a suit under which parties are

seeking, through decree, to compel reapportionment; and



WHEREAS it is said that this Limited Convention, which was called for

limited consideration, is yet a Constitutional Convention within the

language of the Constitution as to Constitutional Conventions,

forbidding frequent Conventions in the last sentence of Article Eleven,

Section 3, second paragraph, more often than each six years, to-wit:



"No such Convention shall be held oftener than once in six years."



NOW, THEREFORE, BE IT RESOLVED, That it is the consensus of opinion of

the members of this Convention that, since this is a Limited Convention,

as hereinbefore set forth, another Convention could be had if it did not

deal with the matters submitted to this Limited Convention.



BE IT FURTHER RESOLVED That it is the consensus of opinion of this

Convention that a Convention should be called by the General Assembly

for the purpose of considering reapportionment in order that a

possibility of Court enforcement being forced on the Sovereign State of

Tennessee by the Courts of the National Government may be avoided.



BE IT FURTHER RESOLVED That this Convention be adjourned for two years

to meet again at the same time set forth in the statute providing for

this Convention, and that it is the consensus of opinion of this body

that it is within the power of the next General Assembly of Tennessee to

broaden the powers of this Convention and to authorize and empower this

Convention to consider a proper amendment to the Constitution that will

provide, when submitted to the electorate, a method of reapportionment.

Tenn.Constitutional Convention of 1959, The Journal and Debates, 35,

278.



15. It is clear that appellants' federal constitutional claims rest

exclusively on alleged violation of the Fourteenth Amendment.  Their

primary claim is that the 1901 statute violates the Equal Protection

Clause of that amendment.  There are allegations invoking the Due

Process Clause, but, from the argument and the exhibits, it appears that

the Due Process Clause argument is directed at certain tax statutes. 

Insofar as the claim involves the validity of those statutes under the

Due Process Clause, we find it unnecessary to decide its merits.  And if

the allegations regarding the tax statutes are designed as the framework

for proofs as to the effects of the allegedly discriminatory

apportionment, we need not rely upon them to support our holding that

the complaint states a federal constitutional claim of violation of the

Equal Protection Clause.  Whether, when the issue to be decided is one

of the constitutional adequacy of this particular apportionment,

taxation arguments and exhibits as now presented add anything, or

whether they could add anything however presented, is for the District

Court in the first instance to decide.



The complaint, in addition to the claims under the Federal Constitution,

also alleges rights, and the General Assembly's duties, under the

Tennessee Constitution.  Since we hold that appellants have -- if it

develops at trial that the facts support the allegations -- a cognizable

federal constitutional cause of action resting in no degree on rights

guaranteed or putatively guaranteed by the Tennessee Constitution, we do

not consider, let alone enforce, rights under a State Constitution which

go further than the protections of the Fourteenth Amendment.  Lastly, we

need not assess the legal significance, in reaching our conclusion, of

the statements of the complaint that the apportionment effected today

under the 1901 Act is "contrary to the philosophy of government in the

United States and all Anglo-Saxon jurisprudence. . . ."



16. We need not reach the question of indispensable parties, because the

District Court has not yet decided it.



17. The accuracy of calling even such dismissals "jurisdictional" was

questioned in Bell v. Hood.  See 327 U.S. at 683.



18. 42 U.S.C.  1983 provides:



Every person who, under color of any statute, ordinance, regulation,

custom, or usage, of any State or Territory, subjects, or causes to be

subjected, any citizen of the United States or other person within the

jurisdiction thereof to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws, shall be liable to the

party injured in an action at law, suit in equity, or other proper

proceeding for redress.



19. This Court has frequently sustained District Court jurisdiction

under 28 U.S.C.  1343(3) or its predecessors to entertain suits to

redress deprivations of rights secured against state infringement by the

Equal Protection and Due Process Clauses of the Fourteenth Amendment. 

Douglas v. Jeannette, 319 U.S. 157; Stefanelli v. Minard, 342 U.S. 117;

cf. Nixon v. Herndon, 273 U.S. 536; Nixon v. Condon, 286 U.S. 73;

Snowden v. Hughes, 321 U.S. l; Smith v. Allwright, 321 U.S. 649; Monroe

v. Pape, 365 U.S. 167; Egan v. Aurora, 365 U.S. 514.



20. Since that case was not brought to the Court until after the

election had been held, the Court cited not only Wood v. Broom, but also

directed dismissal for mootness, citing Brownlow v. Schwartz, 261 U.S.

216.



21. Compare Boeing Aircraft Co. v. King County, 330 U.S. 803 ("the

appeal is dismissed for want of jurisdiction").  See Coleman v. Miller,

307 U.S. 433, 440.



22. Matthews did affirm a judgment that may be read as a dismissal for

want of jurisdiction, 179 F.Supp. 470.  However, the motion to affirm

also rested on the ground of failure to state a claim upon which relief

could be granted.  Cf. text following, on MacDougall v. Green.  And see

text infra,



23. The Mayor of Nashville suing "on behalf of himself and all residents

of the City of Nashville, Davidson County, . . ." and the Cities of

Chattanooga (Hamilton County) and Knoxville (Knox County), each suing on

behalf of its residents, were permitted to intervene as parties

plaintiff.  Since they press the same claims as do the initial

plaintiffs, we find it unnecessary to decide whether the intervenors

would have standing to maintain this action in their asserted

representative capacities.



24. The complaint also contains an averment that the appellants sue "on

their own behalf and on behalf of all other voters in the State of

Tennessee."  (Emphasis added.)  This may be read to assert a claim that

voters in counties allegedly over-represented in the General Assembly

also have standing to complain.  But it is not necessary to decide that

question in this case.



25. The duties of the respective appellees are alleged to be as follows:



Defendant, Joe C. Carr, is the duly elected, qualified and acting

Secretary of State of the State of Tennessee, with his office in

Nashville in said State, and, as such, he is charged with the duty of

furnishing blanks, envelopes and information slips to the County

Election Commissioners, certifying the results of elections and

maintaining the records thereof, and he is further ex officio charged,

together with the Governor and the Attorney General, with the duty of

examining the election returns received from the County Election

Commissioners and declaring the election results, by the applicable

provisions of the Tennessee Code Annotated, and by Chapter 164 of the

Acts of 1949, inter alia.



Defendant, George F. McCanless, is the duly appointed and acting

Attorney General of the State of Tennessee, with his office in Nashville

in said State, and is charged with the duty of advising the officers of

the State upon the law, and is made by Section 23-1107 of the Tennessee

Code Annotated a necessary party defendant in any declaratory judgment

action where the constitutionality of statutes of the State of Tennessee

is attacked, and he is ex officio charged, together with the Governor

and the Secretary of State, with the duty of declaring the election

results, under Section 2-140 of the Tennessee Code Annotated.



Defendant, Jerry McDonald, is the duly appointed Coordinator of

Elections in the State of Tennessee, with his office in Nashville,

Tennessee, and, as such official, is charged with the duties set forth

in the public law enacted by the 1959 General Assembly of Tennessee

creating said office.



Defendants, Dr. Sam Coward, James Alexander, and Hubert Brooks are the

duly appointed and qualified members constituting the State Board of

Elections, and as such they are charged with the duty of appointing the

Election Commissioners for all the counties of the State of Tennessee,

the organization and supervision of the biennial elections as provided

by the Statutes of Tennessee, Chapter 9 of Title 2 of the Tennessee Code

Annotated, Sections 2-901, et seq.



That this action is brought against the aforenamed defendants in their

representative capacities, and that said Election Commissioners are sued

also as representatives of all of the County Election Commissioners in

the State of Tennessee, such persons being so numerous as to make it

impracticable to bring them all before the court; that there is a common

question of law involved, namely, the constitutionality of Tennessee

laws set forth in the Tennessee Code Annotated, Section 3-101 through

Section 3-109, inclusive; that common relief is sought against all

members of said Election Commissions in their official capacities, it

being the duties of the aforesaid County Election Commissioners, within

their respective jurisdictions, to appoint the judges of elections, to

maintain the registry of qualified voters of said County, certify the

results of elections held in said County to the defendants State Board

of Elections and Secretary of State, and of preparing ballots and taking

other steps to prepare for and hold elections in said Counties by virtue

of Sections 2-1201 et seq. of Tennessee Code Annotated, and Section

2-301 et seq. of Tennessee Code Annotated, and Chapter 164 of the Acts

of 1949, inter alia.



The question whether the named defendants are sufficient parties remains

open for consideration on remand.



26. Smiley v. Holm, supra, at 361 ("`citizen, elector and taxpayer' of

the State"); Koenig v. Flynn, supra, at 379 ("`citizens and voters' of

the State"); Wood v. Broom, supra, at 4 ("citizen of Mississippi, a

qualified elector under its laws, and also qualified to be a candidate

for election as representative in Congress"); cf. Carroll v. Becker,

supra, (candidate for office).



27. Mr. Justice Rutledge was of the view that any question of standing

was settled in Smiley v. Holm, supra; MR. JUSTICE BLACK stated "that

appellants had standing to sue, since the facts alleged show that they

have been injured as individuals."  He relied on Coleman v Miller, 307

U.S. 433, 438, 467.  See 328 U.S. 564, 568.



Commentators have suggested that the following statement in MR. JUSTICE

FRANKFURTER s opinion might imply a view that appellants there had no

standing: This is not an action to recover for damage because of the

discriminatory exclusion of a plaintiff from rights enjoyed by other

citizens.  The basis for the suit is not a private wrong, but a wrong

suffered by Illinois as a polity. 328 U.S. at 552.  See Jaffe, Standing

to Secure Judicial Review:  Public Actions, 74 Harv.L.Rev. 1265, 1298

(1961); Lewis, Legislative Apportionment and the Federal Courts, 71

Harv.L.Rev. 1057, 1081-1083 (1958).  But since the opinion goes on to

consider the merits, it seems that this statement was not intended to

intimate any view that the plaintiffs in that action lacked standing. 

Nor do the cases cited immediately after the above quotation deal with

standing.  See especially Lane v. Wilson, 307 U.S. 268,



28. MacDougall v. Green, supra, at 282 ("the `Progressive Party,' its

nominees for United States Senator, Presidential Electors, and State

offices, and several Illinois voters"); South v. Peters, supra, at 277

("residents of the most populous county in the State"); Radford v. Gary,

145 F.Supp. 541, 542 ("citizen of Oklahoma and resident and voter in the

most populous county"); Matthews v. Handley, supra, ("citizen of the

State"); see also Hawke v. Smith (No. 1), 253 U.S. 221; Leser v.

Garnett, 258 U.S. 130; Coleman v. Miller, 307 U.S. 433, 437-446.



29. Cook v. Fortson, 329 U.S. 675; Turman v. Duckworth, ibid.; Colegrove

v. Barrett, 330 U.S. 804; MacDougall v. Green, 335 U.S. 281; South v.

Peters, 339 U.S. 276; Remmey v. Smith, 342 U.S. 916; Anderson v. Jordan,

343 U.S. 912; Kidd v. McCanless, 352 U.S. 920; Radford v. Cary, 352 U.S.

991.



30.



The United States shall guarantee to every State in this Union a

Republican Form of Government, and shall protect each of them against

Invasion, and on Application of the Legislature, or of the Executive

(when the Legislature cannot be convened) against domestic Violence.

U.S.Const., Art. IV,  4.



31. E.g., The conduct of the foreign relations of our Government is

committed by the Constitution to the Executive and Legislative -- "the

political" -- Departments of the Government, and the propriety of what

may be done in the exercise of this political power is not subject to

judicial inquiry or decision. Oetjen v. Central Leather Co., 246 U.S.

297, 302.



32. See Doe v. Braden, 16 How. 635, 657; Taylor v. Morton, 23 Fed.Cas.,

No. 13,799 (C.C.D.Mass.) (Mr. Justice Curtis), affirmed, 2 Black 481.



33. See Doe v. Braden, 16 How. 635, 657.



34. And see Clark v. Allen, 331 U.S. 503.



35. United States v. Klintock, 5 Wheat. 144, 149, see also United States

v. Palmer, 3 Wheat. 610, 634-635.



36. Foster & Elam v. Neilson, 2 Pet. 253, 307, and see Williams v.

Suffolk Insurance Co., 13 Pet. 415, 420.



37. Vermilya-Brown Co. v. Connell, 335 U.S. 377, 380; De Lima v.

Bidwell, 182 U.S. 1, 180-200.



38. See, e.g., Home Building & Loan Assn. v. Blaisdell, 290 U.S. 398,

426.



39. Contrast Martin v. Mott, supra.



40. But cf. Dakota Central Tel. Co. v. South Dakota, 250 U.S. 163, 184,

187.



41. Cf. Dillon v. Gloss, 256 U.S. 368.  See also United States v.

Sprague, 282 U.S. 716, 732.



42. See also Fellows v. Blacksmith, 19 How. 366, 372; United States v.

Old Settlers, 148 U.S. 427, 466, and compare Doe v. Braden, 16 How. 635,

657.



43. This case, so frequently cited for the broad proposition that the

status of an Indian tribe is a matter for the political departments, is,

in fact, a noteworthy example of the limited and precise impact of a

political question.  The Cherokees brought an original suit in this

Court to enjoin Georgia's assertion of jurisdiction over Cherokee

territory and abolition of Cherokee government and laws.  Unquestionably

the case lay at the vortex of most fiery political embroilment.  See 1

Warren, The Supreme Court in United States History (Rev. ed.), 729-779. 

But in spite of some broader language in separate opinions, all that the

Court held was that it possessed no original jurisdiction over the suit,

for the Cherokees could in no view be considered either a State of this

Union or a "foreign state."  Chief Justice Marshall treated the question

as one of de novo interpretation of words in the Constitution.  The

Chief Justice did say that "The acts of our government plainly recognize

the Cherokee nation as a state, and the courts are bound by those acts,"

but here he referred to their existence "as a state, as a distinct

political society, separated from others. . . ."  From there he went to

"A question of much more difficulty. . . .  Do the Cherokees constitute

a foreign state in the sense of the constitution?"  Id. at 16.  Thus,

while the Court referred to "the political" for the decision whether the

tribe was an entity, a separate polity, it held that whether being an

entity the tribe had such status as to be entitled to sue originally was

a judicially soluble issue:  criteria were discoverable in relevant

phrases of the Constitution and in the common understanding of the

times.  As to this issue, the Court was not hampered by problems of the

management of unusual evidence or of possible interference with a

congressional program.  Moreover, Chief Justice Marshall's dictum that

"It savours too much of the exercise of political power to be within the

proper province of the judicial department," id. at 20, was not

addressed to the issue of the Cherokees' status to sue, but rather to

the breadth of the claim asserted and the impropriety of the relief

sought.  Compare Georgia v. Stanton, 6 Wall. 50, 77.  The Chief Justice

made clear that, if the issue of the Cherokees' rights arose in a

customary legal context, "a proper case with proper parties," it would

be justiciable.  Thus, when the same dispute produced a case properly

brought, in which the right asserted was one of protection under federal

treaties and laws from conflicting state law, and the relief sought was

the voiding of a conviction under that state law, the Court did void the

conviction.  Worcester v. Georgia, 6 Pet. 515.  There, the fact that the

tribe was a separate polity served as a datum contributing to the

result, and despite the consequences in a heated federal-state

controversy and the opposition of the other branches of the National

Government, the judicial power acted to reverse the State Supreme Court.

 An example of similar isolation of a political question in the decision

of a case is Luther v. Borden, 7 How. 1, see infra.



44. 7 How. at 29.  And see 11 The Writings and Speeches of Daniel

Webster 217 (1903).



45. See Mowry, The Dorr War (1901), and its exhaustive bibliography. 

And for an account of circumstances surrounding the decision here, see 2

Warren, The Supreme Court in United States History (Rev. ed.), 185-195.



Dorr himself, head of one of the two groups and held in a Rhode Island

jail under a conviction for treason, had earlier sought a decision from

the Supreme Court that his was the lawful government.  His application

for original habeas corpus in the Supreme Court was denied because the

federal courts then lacked authority to issue habeas for a prisoner held

under a state court sentence.  Ex parte Dorr, 3 How. 103.



46. 7 How. at 39.



47. Id. at 39, 40.



48. Even though the Court wrote of unrestrained legislative and

executive authority under this Guaranty, thus making its enforcement a

political question, the Court plainly implied that the political

question barrier was no absolute: Unquestionably a military government,

established as the permanent government of the State, would not be a

republican government, and it would be the duty of Congress to overthrow

it. 7 How. at 45.  Of course, it does not necessarily follow that, if

Congress did not act, the Court would.  For while the judiciary might be

able to decide the limits of the meaning of "republican form," and thus

the factor of lack of criteria might fall away, there would remain other

possible barriers to decision because of primary commitment to another

branch, which would have to be considered in the particular fact setting

presented.



That was not the only occasion on which this Court indicated that lack

of criteria does not obliterate the Guaranty's extreme limits: The

guaranty is of a republican form of government.  No particular

government is designated as republican, neither is the exact form to be

guaranteed in any manner especially designated.  Here, as in other parts

of the instrument, we are compelled to resort elsewhere to ascertain

what was intended.



The guaranty necessarily implies a duty on the part of the States

themselves to provide such a government.  All the States had governments

when the Constitution was adopted.  In all, the people participated to

some extent, through their representatives elected in the manner

specially provided.  These governments the Constitution did not change. 

They were accepted precisely as they were, and it is, therefore, to be

presumed that they were such as it was the duty of the States to

provide.  Thus, we have unmistakable evidence of what was republican in

form within the meaning of that term as employed in the Constitution.

Minor v. Happersett, 21 Wall. 162, 175-176.  There, the question was

whether a government republican in form could deny the vote to women.



In re Duncan, 139 U.S. 449, upheld a murder conviction against a claim

that the relevant codes had been invalidly enacted.  The Court there

said:



By the Constitution, a republican form of government is guaranteed to

every State in the Union, and the distinguishing feature of that form is

the right of the people to choose their own officers for governmental

administration, and pass their own laws in virtue of the legislative

power reposed in representative bodies, whose legitimate acts may be

said to be those of the people themselves; but, while the people are

thus the source of political power, their governments, National and

State, have been limited by written constitutions, and they have

themselves thereby set bounds to their own power, as against the sudden

impulses of mere majorities. 139 U.S. at 461.  But the Court did not

find any of these fundamental principles violated.



49. But cf. Hawke v. Smith (No. 1), 253 U.S. 221; National Prohibition

Cases, 253 U.S. 350.



50. 6 Wall. at 65, 66.



51. The First Reconstruction Act opened:



Whereas no legal State governments . . . now exists [sic] in the rebel

States of . . . Georgia [and] Mississippi . . . , and whereas it is

necessary that peace and good order should be enforced in said States

until loyal and republican State governments can be legally established

. . . 14 Stat. 428.  And see 15 Stat. 2, 14.



52. In Mississippi v. Johnson, 4 Wall. 475, the State sought to enjoin

the President from executing the Acts, alleging that his role was purely

ministerial.  The Court held that the duties were in no sense

ministerial, and that, although the State sought to compel inaction,

rather than action, the absolute lack of precedent for any such

distinction left the case one in which "general principles . . . forbid

judicial interference with the exercise of Executive discretion."  4

Wall. at 499.  See also Mississippi v. Stanton, 154 U.S. 554, and see 2

Warren, The Supreme Court in United States History (Rev. ed.), 463.



For another instance of congressional action challenged as transgressing

the Guaranty Clause, see The Collector v. Day, 11 Wall. 113, 125-126,

overruled, Graves v. O'Keefe, 306 U.S. 466.



53. On the other hand, the implication of the Guaranty Clause in a case

concerning congressional action does not always preclude judicial

action.  It has been held that the clause gives Congress no power to

impose restrictions upon a State's admission which would undercut the

constitutional mandate that the States be on an equal footing.  Coyle v.

Smith, 221 U.S. 559.  And in Texas v. White, 7 Wall. 700, although

Congress had determined that the State's government was not republican

in form, the State's standing to bring an original action in this Court

was sustained.



54. See infra, p. 235, considering Kidd v. McCanless, 352 U.S. 920.



55. Boyd v. Nebraska ex rel. Thayer, 143 U.S. 135, 183 (Field, J.,

dissenting).



56. Gomillion v. Lightfoot, 270 F.2d 594, relying upon, inter alia,

Hunter v. Pittsburgh, 207 U.S. 161.



57. The Court's opinion was joined by MR. JUSTICE DOUGLAS, noting his

adherence to the dissents in Colegrove and South v. Peters, supra, and

the judgment was concurred in by MR. JUSTICE WHITTAKER, who wrote that

the decision should rest on the Equal Protection Clause, rather than on

the Fifteenth Amendment, since there had been not solely a denial of the

vote (if there had been that, at all), but also a "fencing out" of a

racial group.



58. No holding to the contrary is to be found in Cave v. Newell, 246

U.S. 650, dismissing a writ of error to the Supreme Court of Missouri

272 Mo. 653, 199 S.W. 1014; or in Snowden v. Hughes, 321 U.S. 1.



59. The ground of Mr. Justice Rutledge's vote to affirm is further

explained in his footnote 3, 328 U.S. at 566: "The power of a court of

equity to act is a discretionary one. . . .  Where a federal court of

equity is asked to interfere with the enforcement of state laws, it

should do so only `to prevent irreparable injury which is clear and

imminent.'"  American Federation of Labor v. Watson, 327 U.S. 582, 593

and cases cited.



No constitutional questions, including the question whether voters have

a judicially enforceable constitutional right to vote at elections of

congressmen from districts of equal population, were decided in

Colegrove.  Six of the participating Justices reached the questions, but

divided three to three on their merits.  Mr. Justice Rutledge believed

that it was not necessary to decide them.  He said: There is [an

alternative to constitutional decision] in this case.  And I think the

gravity of the constitutional questions raised so great, together with

the possibilities for collision [with the political departments of the

Government], that the admonition [against avoidable constitutional

decision] is appropriate to be followed here.  Other reasons support

this view, including the fact that, in my opinion, the basic ruling and

less important ones in Smiley v. Holm, supra, would otherwise be brought

into question. 328 U.S. at   He also joined with his brethren who shared

his view that the issues were justiciable in considering that Wood v.

Broom, 287 U.S. 1, decided no constitutional questions, but the Court

disposed of the cause on the ground that the 1929 Reapportionment Act,

46 Stat. 21, did not carry forward the requirements of the 1911 Act, 37

Stat. 13, and declined to decide whether there was equity in the bill.

328 U.S. at 565; see also id. at 573.  We agree with this view of Wood

v. Broom.



60. See also Buford v. State Board of Elections, 206 Tenn. 480, 334

S.W.2d 726; State ex rel. Sanborn v. Davidson County Board of Election

Comm'rs, No. 36,391 Tenn.Sup.Ct., Oct. 9, 1954 (unreported); 8

Vand.L.Rev. 501 (1955). DOUGLAS, J., concurring (Footnotes)



1. I feel strongly that many of the cases cited by the Court and

involving so-called "political" questions were wrongly decided.



In joining the opinion, I do not approve those decisions, but only

construe the Court's opinion in this case as stating an accurate

historical account of what the prior cases have held.



2. The statements in Luther v. Borden, 7 How. 1, 42, that this guaranty

is enforceable only by Congress or the Chief Executive is not

maintainable.  Of course, the Chief Executive, not the Court, determines

how a State will be protected against invasion.  Of course, each House

of Congress, not the Court, is "the Judge of the Elections, Returns, and

Qualifications of its own Members."  Article I, Section 5, Clause 1. 

But the abdication of all judicial functions respecting voting rights (7

How. at 41), however justified by the peculiarities of the charter form

of government in Rhode Island at the time of Dorr's Rebellion, states no

general principle.  It indeed is contrary to the cases discussed in the

body of this opinion -- the modern decisions of the Court that give the

full panoply of judicial protection to voting rights.  Today we would

not say with Chief Justice Taney that it is no part of the judicial

function to protect the right to vote of those "to whom it is denied by

the written and established constitution and laws of the State."  Ibid.



Moreover, the Court's refusal to examine the legality of the regime of

martial law which had been laid upon Rhode Island (id. at 45-46) is

indefensible, as Mr. Justice Woodbury maintained in his dissent.  Id. at

59 et seq.  Today we would ask with him: . . . who could hold for a

moment, when the writ of habeas corpus cannot be suspended by the

legislature itself, either in the general government or most of the

States, without an express constitutional permission, that all other

writs and laws could be suspended, and martial law substituted for them

over the whole State or country, without any express constitutional

license to that effect, in any emergency? Id. at 67.



Justice Woodbury went on to say:



It would be alarming enough to sanction here an unlimited power,

exercised either by legislatures, or the executive, or courts, when all

our governments are themselves governments of limitations and checks,

and of fixed and known laws, and the people a race above all others

jealous of encroachments by those in power.  And it is far better that

those persons should be without the protection of the ordinary laws of

the land who disregard them in an emergency, and should look to a

grateful country for indemnity and pardon, than to allow, beforehand,

the whole frame of jurisprudence to be overturned, and every thing

placed at the mercy of the bayonet.



No tribunal or department in our system of governments ever can be

lawfully authorized to dispense with the laws, like some of the

tyrannical Stuarts, or to repeal, or abolish, or suspend the whole body

of them; or, in other words, appoint an unrestrained military dictator

at the head of armed men.



Whatever stretches of such power may be ventured on in great crises,

they cannot be upheld by the laws, as they prostrate the laws and ride

triumphant over and beyond them, however the Assembly of Rhode Island,

under the exigency, may have hastily supposed that such a measure in

this instance was constitutional.  It is but a branch of the omnipotence

claimed by Parliament to pass bills of attainder, belonging to the same

dangerous and arbitrary family with martial law. Id. at 69-70.



What he wrote was later to become the tradition, as expressed by Chief

Justice Hughes in Sterling v. Constantin, 287 U.S. 378, 401: What are

the allowable limits of military discretion, and whether or not they

have been overstepped in a particular case, are judicial questions.



3. The category of the "political" question is, in my view, narrower

than the decided cases indicate. Even the English courts have held that

a resolution of one House of Parliament does not change the law

(Stockdale v. Hansard (1839), 9 A. & E. 1, and Bowles v. Bank of England

(No. 2) [1913] 1 Ch. 57), and these decisions imply that the House of

Commons, acting alone, does not constitute the "Parliament" recognised

by the English courts. 103 Sol.Jour. 995, 996.  The Court in Bowles v.

Bank of England, [1913] 1 Ch. 57, 84-85, stated: By the statute 1 W. &

M., usually known as the Bill of Rights, it was finally settled that

there could be no taxation in this country except under authority of an

Act of Parliament.  The Bill of Rights still remains unrepealed, and no

practice or custom, however prolonged, or however acquiesced in on the

part of the subject, can be relied on by the Crown as justifying any

infringement of its provisions.  It follows that, with regard to the

powers of the Crown to levy taxation, no resolution, either of the

Committee for Ways and Means or of the House itself, has any legal

effect whatever.  Such resolutions are necessitated by a parliamentary

procedure adopted with a view to the protection of the subject against

the hasty imposition of taxes, and it would be strange to find them

relied on as justifying the Crown in levying a tax before such tax is

actually imposed by Act of Parliament.



In The Pocket Veto Case, 279 U.S. 655, the Court undertook a review of

the veto provisions of the Constitution and concluded that the measure

in litigation had not become a law.  Cf. Coleman v. Miller, 307 U.S.

433.



Georgia v. Stanton, 6 Wall. 50, involved the application of the

Reconstruction Acts to Georgia -- laws which destroyed by force the

internal regime of that State.  Yet the Court refused to take

jurisdiction.  That question was no more "political" than a host of

others we have entertained.  See, e.g., Pennsylvania v. West Virginia,

262 U.S. 553; Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579;

Alabama v. Texas, 347 U.S. 272.



Today would this Court hold nonjusticiable or "political" a suit to

enjoin a Governor who, like Fidel Castro, takes everything into his own

hands and suspends all election laws?



Georgia v. Stanton, supra, expresses a philosophy at war with Ex parte

Milligan, 4 Wall. 2, and Duncan v. Kahanamoku, 327 U.S. 304.  The

dominance of the civilian authority has been expressed from the

beginning.  See Wise v. Withers, 3 Cranch 331, 337; Sterling v.

Constantin, supra, note 2.



4. We are told by the National Institute of Municipal Law Officers in an

amicus brief:



Regardless of the fact that, in the last two decades, the United States

has become a predominantly urban country where well over two-thirds of

the population now lives in cities or suburbs, political representation

in the majority of state legislatures is 50 or more years behind the

times.  Apportionments made when the greater part of the population was

located in rural communities are still determining and undermining our

elections.



As a consequence, the municipality of 1960 is forced to function in a

horse and buggy environment where there is little political recognition

of the heavy demands of an urban population.  These demands will become

even greater by 1970, when some 150 million people will be living in

urban areas.



The National Institute of Municipal Law Officers has for many years

recognized the widespread complaint that, by far the greatest

preponderance of state representatives and senators are from rural areas

which, in the main, fail to become vitally interested in the increasing

difficulties now facing urban administrators.



Since World War II, the explosion in city and suburban population has

created intense local problems in education, transportation, and

housing.  Adequate handling of these problems has not been possible to a

large extent, due chiefly to the political weakness of municipalities. 

This situation is directly attributable to considerable

underrepresentation of cities in the legislatures of most states. Amicus

brief, pp. 2-3.



5.  The recent ruling by the Iowa Supreme Court that a legislature,

though elected under an unfair apportionment scheme, is nonetheless a

legislature empowered to act (Cedar Rapids v. Cox, 252 Iowa 948, 964,

108 N.W.2d 253, 262-263; cf. Kidd v. McCanless, 200 Tenn. 273, 292

S.W.2d 40) is plainly correct.



There need be no fear of a more disastrous collision between federal and

state agencies here than where a federal court enjoins gerrymandering

based on racial lines.  See Gomillion v. Lightfoot, supra.



The District Court need not undertake a complete reapportionment.  It

might possibly achieve the goal of substantial equality merely by

directing respondent to eliminate the egregious injustices.  Or its

conclusion that reapportionment should be made may, in itself, stimulate

legislative action.  That was the result in Asbury Park Press v.

Woolley, 33 N.J. 1, 161 A.2d 705, where the state court ruled it had

jurisdiction: If, by reason of passage of time and changing conditions,

the reapportionment statute no longer serves its original purpose of

securing to the voter the full constitutional value of his franchise,

and the legislative branch fails to take appropriate restorative action,

the doors of the courts must be open to him.  The lawmaking body cannot,

by inaction, alter the constitutional system under which it has its own

existence. 33 N.J. at 14, 161 A.2d at 711.  The court withheld its

decision on the merits in order that the legislature might have an

opportunity to consider adoption of a reapportionment act.  For the

sequel see Application of Lamb, 67 N.J.Super. 39, 46-47, 169 A.2d 822,

825-826.



Reapportionment was also the result in Magraw v. Donovan, 159 F.Supp.

901, where a federal three-judge District Court took jurisdiction,

saying, 163 F.Supp. 184, 187:



Here it is the unmistakable duty of the State Legislature to reapportion

itself periodically in accordance with recent population changes. . . . 

Early in January, 1959, the 61st Session of the Minnesota Legislature

will convene, all of the members of which will be newly elected on

November 4th of this year.   The facts which have been presented to us

will be available to them.  It is not to be presumed that the

Legislature will refuse to take such action as is necessary to comply

with its duty under the State Constitution.  We defer decision on all

the issues presented (including that of the power of this Court to grant

relief) in order to afford the Legislature full opportunity to "heed the

constitutional mandate to redistrict." See 177 F.Supp. 803, where the

case was dismissed as moot, the State Legislature having acted. CLARK,

J., concurring (Footnotes)



1. The opinion stated at 551 that the Court "could also dispose of this

case on the authority of Wood v. Broom [287 U.S. 1 (1932)]."  Wood v.

Broom involved only the interpretation of a congressional

reapportionment Act.



2. Similarly, the Equal Protection Clause was not invoked in Tedesco v.

Board of Supervisors, 339 U.S. 940 (1950).



3. I do not read the later case of Colegrove v. Barrett, 330 U.S. 804

(1947), as having rejected the equal protection argument adopted here. 

That was merely a dismissal of an appeal where the equal protection

point was mentioned along with attacks under three other constitutional

provisions, two congressional Acts, and three state constitutional

provisions.



4. Georgia based its election system on a consistent combination of

political units and population, giving six unit votes to the eight most

populous counties, four unit votes to the 30 counties next in

population, and two unit votes to each of the remaining counties.



5. See Part I of the Appendix to MR. JUSTICE HARLAN's dissent, post,



6. It is suggested that the districting is not unconstitutional since it

was established by a statute that was constitutional when passed some 60

years ago.  But many Assembly Sessions since that time have deliberately

refused to change the original act, and, in any event, "[a] statute

[constitutionally] valid when enacted may become invalid by change in

the conditions to which it is applied."  Nashville, C. & St.L. R. Co. v.

Walters, 294 U.S. 405, 415 (1935).



7. "Total representation" indicates the combined representation in the

State Senate (33 members) and the State House of Representatives (99

members) in the Assembly of Tennessee.  Assuming a county has one

representative, it is credited in this calculation with 1/99.  Likewise,

if the same county has one-third of a senate seat, it is credited with

another 1/99, and thus such a county, in our calculation, would have a

"total representation" of two; if a county has one representative and

one-sixth of a senate seat, it is credited with 1.5/99, or 1.50.  It is

this last figure that I use here in an effort to make the comparisons

clear.  The 1950, rather than the 1960 census of voting population, is

used to avoid the charge that use of 1960 tabulations might not have

allowed sufficient time for the State to act.  However, the 1960 picture

is even more irrational than the 1950 one.



8. Of course, this was not the case in the Georgia county unit system,

South v. Peters, supra, or the Illinois initiative plan, MacDougall v.

Green, supra, where recognized political units having independent

significance were given minimum political weight.



9. It is interesting to note that state judges often rest their

decisions on the ground that this Court has precluded adjudication of

the federal claim.  See, e.g., Scholle v. Secretary of State, 360 Mich.

1, 104 N.W.2d 63 (1960).



10. 1 Farrand, The Records of the Federal Convention of 1787, 124.



11. Kant, Perpetual Peace. FRANKFURTER, J., dissenting (Footnotes)



* It is worth reminding that the problem of legislative apportionment is

not one dividing North and South.  Indeed, in the present House of

Representatives, for example, Michigan's congressional districts are far

less representative of the numbers of inhabitants, according to the 1960

census, than are Louisiana's. Michigan's Sixteenth District, which is

93.1% urban, contains 802,994 persons, and its Twelfth, which is 47.6%

urban, contains 177,431 -- one-fifth as many persons.  Louisiana's most

populous district, the Sixth, is 53.6% urban and contains 536,029

persons, and its least populous, the Eighth, 36.7% urban, contains

263,850 -- nearly half.  Gross disregard of any assumption that our

political system implies even approximation to the notion that

individual votes in the various districts within a State should have

equal weight is as true, e.g., of California, Illinois, and Ohio as it

is of Georgia.  See United States Department of Commerce, Census

Release, February 24, 1962, CB62-23.



1. See Wood v. Broom, 287 U.S. 1; Colegrove v. Green, 328 U.S. 549,

rehearing denied, 329 U.S. 825, motion for reargument before the full

bench denied, 329 U.S. 828; Cook v. Fortson, 329 U.S. 675, rehearing

denied, 329 U.S. 829; Turman v. Duckworth, 329 U.S. 675, rehearing

denied, 329 U.S. 829; Colegrove v. Barrett, 330 U.S. 804; MacDougall v.

Green, 335 U.S. 281; South v. Peters, 339 U.S. 276; Tedesco v. Board of

Supervisors, 339 U.S. 940; Remmey v. Smith, 342 U.S. 916; Cox v. Peters,

342 U.S. 936, rehearing denied, 343 U.S. 921; Anderson v. Jordan, 343

U.S. 912; Kidd v. McCanless, 352 U.S. 920; Radford v. Gary, 352 U.S.

991; Hartsfield v. Sloan, 357 U.S. 916; Matthews v. Handley, 361 U.S.

127; Perry v. Folsom, 144 F.Supp. 874 (D.C.N.D.Ala.); Magraw v. Donovan,

163 F.Supp. 184 (D.C.D. Minn.); cf. Dyer v. Kazuhisa Abe, 138 F.Supp.

220 (D.C.D. Hawaii).  And see Keogh v. Neely, 50 F.2d 685 (C.A. 7th

Cir.).



2. Although the motion to intervene by the Mayor of Nashville asserted

an interest in the litigation in only a representative capacity, the

complaint which he subsequently filed set forth that he was a qualified

voter who also sued in his own behalf.  The municipalities of Knoxville

and Chattanooga purport to represent their residents.  Since the claims

of the municipal intervenors do not differ materially from those of the

parties who sue as individual voters, the Court need not now determine

whether the municipalities are proper parties to this proceeding.  See,

e.g., Stewart v. Kansas City, 239 U.S. 14.



3. The original complaint named as defendants Tennessee's Secretary of

State, Attorney General, Coordinator of Elections, and the three members

of the State Board of Elections, seeking to make the Board members

representatives of all the State's County Election Commissioners.  The

prayer in an intervening complaint by the City of Knoxville, that the

Commissioners of Elections of Knox County be added as parties defendant

seems not to have been acted on by the court below.  Defendants moved to

dismiss, inter alia, on the ground of failure to join indispensable

parties, and they argue in this Court that only the County Election

Commissioners of the ninety-five counties are the effective

administrators of Tennessee's elections laws, and that none of the

defendants have substantial duties in connection therewith.  The

District Court deferred ruling on this ground of the motion.  Inasmuch

as it involves questions of local law more appropriately decided by

judges sitting in Tennessee than by this Court, and since, in any event,

the failure to join County Election Commissioners in this action looking

to prospective relief could be corrected, if necessary, by amendment of

the complaints, the issue does not concern the Court on this appeal.



4. Jurisdiction is predicated upon R.S.  1979, 42 U.S.C.  1983, and 28

U.S.C.  1343(3).



5. However, counties having two-thirds of the ratio required for a

Representative are entitled to seat one member in the House, and there

are certain geographical restrictions upon the formation of Senate

districts.  The applicable provisions of Article II of the Tennessee

Constitution are:



Sec. 4.  Census. -- An enumeration of the qualified voters, and an

apportionment of the Representatives in the General Assembly, shall be

made in the year one thousand eight hundred and seventy-one, and within

every subsequent term of ten years.



Sec. 5.  Apportionment of representatives. -- The number of

Representatives shall, at the several periods of making the enumeration,

be apportioned among the several counties or districts, according to the

number of qualified voters in each, and shall not exceed seventy-five,

until the population of the State shall be one million and a half, and

shall never exceed ninety-nine; Provided that any county having

two-thirds of the ratio shall be entitled to one member.



Sec. 6.  Apportionment of senators. -- The number of Senators shall, at

the several periods of making the enumeration, be apportioned among the

several counties or districts according to the number of qualified

electors in each, and shall not exceed one-third the number of

representatives.  In apportioning the Senators among the different

counties, the fraction that may be lost by any county or counties, in

the apportionment of members to the House of Representatives shall be

made up to such county or counties in the Senate as near as may be

practicable.  When a district is composed of two or more counties, they

shall be adjoining, and no county shall be divided in forming a district

.



6. It is alleged that certain amendments to the Act of 1901 made only

minor modifications of that Act, adjusting the boundaries of individual

districts in a manner not material to plaintiffs' claims.



7. The exhibits do not reveal the source of the population figures which

they set forth, but it appears that the figures were taken from the

United States Census of Population, 1950, Volume II, Part 42

(Tennessee), Table 41, at 76-91.  These census figures represent the

total population over twenty-one years of age in each Tennessee county;

they do not purport to enumerate "qualified voters" or "qualified

electors," the measure of apportionment prescribed by the Tennessee

Constitution.  See note 5, supra.  To qualify to vote in Tennessee, in

addition to fulfilling the age requirement, an individual must be a

citizen of the United States, a resident of the State for twelve months

and of the county where he offers his vote for six months next preceding

the election, and must not be under the disqualification attaching to

conviction for certain offenses.  Tenn.Code Ann., 1955,  2-201, 2-205. 

The statistics found in the United States Census of Population, 1950,

Volume II, Part 42 (Tennessee), Table 42, at 92-97, suggest that the

residence requirement, in particular, may be an unknown variable of

considerable significance.  Appellants do not suggest a means by which a

court, on the basis of the federal census figures, can determine the

number of qualified voters in the various Tennessee counties.



8. The "county aid funds" derived from a portion of a state gasoline

privilege tax, for example, are distributed among the counties as

follows:  one-half equally among the ninety-five counties, one-quarter

on the basis of area, one-quarter on the basis of population, to be used

by county authorities in the building, repairing and improving of county

roads and bridges.  Tenn.Code Ann., 1955,  54-403.  Appellants urge that

this distribution is discriminatory.



9. Plaintiffs also suggested, as an alternative to at-large elections,

that the District Court might itself redistrict the State.  They did

not, however, expressly pray such relief.



10. See Bickel, Foreword:  The Passive Virtues, 75 Harv.L.Rev. 40, 45 et

seq. (1961).



11. See, e.g., United States v. Palmer, 3 Wheat. 610, 634, 635; The

Divina Pastora, 4 Wheat. 52; Williams v. Suffolk Ins. Co., 13 Pet. 415;

Kennett v. Chambers, 14 How. 38; Doe v. Braden, 16 How. 635; Jones v.

United States, 137 U.S. 202; Terlinden v. Ames, 184 U.S. 270; Charlton

v. Kelly, 229 U.S. 447; Oetjen v. Central Leather Co., 246 U.S. 297; Ex

parte Peru, 318 U.S. 578; Clark v. Allen, 331 U.S. 503.  Compare Foster

and Elam v. Neilson, 2 Pet. 253, with United States v. Arredondo, 6 Pet.

691.  Of course, judgment concerning the "political" nature of even a

controversy affecting the Nation's foreign affairs is not a simple

mechanical matter, and certain of the Court's decisions have accorded

scant weight to the consideration of unity of action in the conduct of

external relations.  Compare Vermilya-Brown Co. v. Connell, 335 U.S.

377, with United States v. Pink, 315 U.S. 203.



12. Obviously, this is the equivalent of saying that the characteristics

are not "constitutionally requisite" in a judicially enforceable sense. 

The recognition of their necessity as a condition of legislation is

left, as is observance of certain other constitutional commands, to the

conscience of the nonjudicial organs.  Cf. Kentucky v. Dennison, 24 How.

66.



13. Also compare the Coleman case and United States v. Sprague, 282 U.S.

716, with Hawke v. Smith (No. 1), 253 U.S. 221.  See the National

Prohibition Cases, 253 U.S. 350, and consider the Court's treatment of

the several contentions in Leser v. Garnett, 258 U.S. 130.



14. E.g., Myers v. Anderson, 238 U.S. 368; Nixon v. Condon, 286 U.S. 73;

Lane v. Wilson, 307 U.S. 268; Smith v. Allwright, 321 U.S. 649.  The

action for damages for improperly rejecting an elector's vote had been

given by the English law since the time of Ashby v. White, 1 Brown's

Cases in Parliament 62; 2 Ld.Raym. 938; 3 Ld.Raym. 320, a case which, in

its own day, precipitated an intra-parliamentary war of major

dimensions.  See 6 Hansard, Parliamentary History of England (1810),

225-324, 376-436.  Prior to the racial discrimination cases, this Court

had recognized the action, by implication, in dictum in Swafford v.

Templeton, 185 U.S. 487, and Wiley v. Sinkler, 179 U.S. 58, both

respecting federal elections.



15. Cf. Gomillion v. Lightfoot, 364 U.S. 339.



16. By statute, an action for preventive relief is now given the United

States in certain voting cases.  71 Stat. 637, 42 U.S.C.  1971(c),

amending R.S.  2004.  See United States v. Raines, 362 U.S. 17; United

States v. Thomas, 362 U.S. 58.



17. Compare Rhode Island v. Massachusetts, 12 Pet. 657, and cases

following, with Georgia v. Stanton, 6 Wall. 50.



18. Compare Worcester v. Georgia, 6 Pet. 515, with Cherokee Nation v.

Georgia, 5 Pet. 1, 20, 28 (Mr. Justice Johnson, concurring), 51 and 75

(Mr. Justice Thompson, dissenting).



19. This was an alternative ground of Chief Justice Marshall's opinion

for the Court.  Id. at 20.  The question which Marshall reserved as

"unnecessary to decide," ibid., was not the justiciability of the bill

in this aspect, but the "more doubtful" question whether that "part of

the bill which respects the land occupied by the Indians, and prays the

aid of the court to protect their possession," might be entertained. 

Ibid.  Mr. Justice Johnson, concurring, found the controversy

nonjusticiable, and would have put the ruling solely on this ground, id.

at 28, and Mr. Justice Thompson, in dissent, agreed that much of the

matter in the bill was not fit for judicial determination.  Id. at 51,

75.



20. Cf. Mississippi v. Johnson, 4 Wall. 475.



21. Considerations similar to those which determined the Cherokee Nation

case and Georgia v. Stanton no doubt explain the celebrated decision in

Nabob of the Carnatic v. East India Co., 1 Ves.jun. *371; 2 Ves.jun.

*56, rather than any attribution of a portion of British sovereignty, in

respect of Indian affairs, to the company.  The reluctance of the

English Judges to involve themselves in contests of factional political

power is of ancient standing.  In The Duke of York's Claim to the Crown,

5 Rotuli Parl. 375, printed in Wambaugh, Cases on Constitutional Law

(1915), 1, the role which the Judges were asked to play appears to have

been rather that of advocates than of judges, but the answer which they

returned to the Lords relied on reasons equally applicable to either

role.



22. The United States shall guarantee to every State in this Union a

Republican Form of Government, and shall protect each of them against

Invasion, and on Application of the Legislature, or of the Executive

(when the Legislature cannot be convened) against domestic Violence.



23. Cf. the cases holding that the Fourteenth Amendment imposes no such

restriction upon the form of a State's governmental organization as will

permit persons affected by government action to complain that, in its

organization principles of separation of powers have been violated. 

E.g., Dreyer v. Illinois, 187 U.S. 71; Soliah v. Heskin, 222 U.S. 522;

Houck v. Little River Drainage District, 239 U.S. 254.  The same

consistent refusal of this Court to find that the Federal Constitution

restricts state power to design the structure of state political

institutions is reflected in the cases rejecting claims arising out of

the States' creation, alteration, or destruction of local subdivisions

or their powers, insofar as these claims are made by the subdivisions

themselves, see Laramie County v. Albany County, 92 U.S. 307; Pawhuska

v. Pawhuska Oil & Gas Co., 250 U.S. 394; Trenton v. New Jersey, 262 U.S.

182; Risty v. Chicago, R.I. & P. R. Co., 270 U.S. 378, 389-390; Williams

v. Mayor and City Council of Baltimore, 289 U.S. 36, or by the whole

body of their residents who share only a general, undifferentiated

interest in their preservation.  See Hunter v. Pittsburgh, 207 U.S. 161.

 The policy is also given effect by the denial of "standing" to persons

seeking to challenge state action as infringing the interest of some

separate unit within the State's administrative structure -- a denial

which precludes the arbitrament by federal courts of what are only

disputes over the local allocation of government functions and powers. 

See, e.g., Smith v. Indiana, 191 U.S. 138; Braxton County Court v. West

Virginia, 208 U.S. 192; Marshall v. Dye, 231 U.S. 250; Stewart v Kansas

City, 239 U.S. 14.



24. 223 U.S. at 141. . . .  [T]he contention, if held to be sound, would

necessarily affect the validity not only of the particular statute which

is before us, but of every other statute passed in Oregon since the

adoption of the initiative and referendum.  And, indeed, the

propositions go further than this, since, in their essence, they assert

that there is no governmental function, legislative or judicial, in

Oregon, because it cannot be assumed, if the proposition be well

founded, that there is at one and the same time one and the same

government which is republican in form and not of that character.

Compare Luther v. Borden, 7 How. 1, 38-39:



. . .  For, if this court is authorized to enter upon this inquiry as

proposed by the plaintiff, and it should be decided that the charter

government had no legal existence during the period of time above

mentioned -- if it had been annulled by the adoption of the opposing

government -- then the laws passed by its legislature during that time

were nullities, its taxes wrongfully collected, its salaries and

compensation to its officers illegally paid, its public accounts

improperly settled, and the judgments and sentences of its courts in

civil and criminal cases null and void, and the officers who carried

their decisions into operation answerable as trespassers, if not, in

some cases, as criminals.



When the decision of this court might lead to such results, it becomes

its duty to examine very carefully its own powers before it undertakes

to exercise jurisdiction.



25. See Bowen, The Recent Contest in Rhode Island (1844); Frieze, A

Concise History of the Efforts to Obtain an Extension of Suffrage in

Rhode Island; From the Year 1811 to 1842 (2d ed. 1842); Mowry, The Dorr

War (1901); Wayland, The Affairs of Rhode Island (2d ed. 1842).



26. The Court reasoned, with respect to the guarantee against domestic

violence also contained in Art. IV,  4, that this, too, was an authority

committed solely to Congress; that Congress had empowered the President,

not the courts, to enforce it, and that it was inconceivable that the

courts should assume a power to make determinations in the premises

which might conflict with those of the Executive.  It noted further

that, in fact, the President had recognized the governor of the charter

government as the lawful authority in Rhode Island, although it had been

unnecessary to call out the militia in his support.



27. See note 24, supra.



28. Id. at 39, 46-47.



29. Id. at 41-42.



30. In evaluating the Court's determination not to inquire into the

authority of the charter government, it must be remembered that,

throughout the country, Dorr "had received the sympathy of the

Democratic press.  His cause, therefore, became distinctly a party

issue."  2 Warren, The Supreme Court in United States History (Rev.

ed.1937), 186.



31. Appellants also allege discrimination in the legislature's

allocation of certain tax burdens and benefits.  Whether or not such

discrimination would violate the Equal Protection Clause if the tax

statutes were challenged in a proper proceeding, see Dane v. Jackson,

256 U.S. 589; cf. Nashville, C. & St.L. R. Co. v. Wallace, 288 U.S. 249,

268, these recitative allegations do not affect the nature of the

controversy which appellants' complaints present.



32. Appellants would find a "right" to have one's ballot counted on

authority of United States v. Mosley, 238 U.S. 383; United States v.

Classic, 313 U.S. 299; United States v. Saylor, 322 U.S. 385.  All that

these cases hold is that conspiracies to commit certain sharp election

practices which, in a federal election, cause ballots not to receive the

weight which the law has, in fact, given them, may amount to

deprivations of the constitutionally secured right to vote for federal

officers.  But see United States v. Bathgate, 246 U.S. 220.  The cases

do not so much as suggest that there exists a constitutional limitation

upon the relative weight to which the law might properly entitle

respective ballots, even in federal elections.



33. Mackenzie, Free Elections (1958) (hereafter, Mackenzie), 108.



34. Ogg, English Government and Politics (2d ed.1936) (hereafter Ogg),

248-250, 257; Seymour, Electoral Reform in England and Wales (1915)

(hereafter, Seymour), 46-47.



35. Ogg 257-259; Seymour 45-52; Carpenter, The Development of American

Political Thought (1930) (hereafter, Carpenter), 45-46.



36. Ogg 258.



37. Seymour 51.



38. The Federalist, No. 56 (Wright ed.1961), at 382.  Compare Seymour

49.  This takes account of the restricted franchise as well as the

effect of the local unit apportionment principle.



39. Seymour 52-76.



40. Ogg 264-265; Seymour 318-319.



41. For these and other instances of gross inequality, see Seymour

320-325.



42. Seymour 333-346; Ogg 265.



43. Seymour 349, 490-491.



44. Seymour 489-518.



45. Mackenzie 108; see also Seymour 513-517.



46. Ogg 270.



47. Ogg 253.



48. Ogg 270-271.



49. Ogg 273-274.



50. 7 & 8 Geo. VI, c. 41.  The 1944 Act was amended by the House Of

Commons (Redistribution Of Seats) Act, 1947, 10 & 11 Geo. VI, c. 10, and

the two, with other provisions, were consolidated in the House Of

Commons (Redistribution Of Seats) Act, 1949, 12 & 13 Geo. VI, c. 66,

since amended by the House Of Commons (Redistribution Of Seats) Act,

1958, 6 & 7 Eliz. II, c. 26.



51. See generally Butler, The Redistribution Of Seats, 33 Public

Administration 125 (1955).



52. See note 50, supra.  However, Commissions are given discretion to

depart from the strict application of the local boundary rule to avoid

excessive disparities between the electorate of a constituency and the

electoral quota, or between the electorate of a constituency and that of

neighboring constituencies.  For detailed discussion, see Craig,

Parliament and Boundary Commissions, [1959] Public Law 23.  See also

Butler, supra, note 51, at 127.



53. Mackenzie 108, 113.



54. The Times, Dec. 15, 1954, p. 4, cols 3-4.



55. [1955] 1 Ch. 238.



56. The court reserved the question whether a judicial remedy might be

found in a case in which it appeared that a Commission had manifestly

acted in complete disregard of the Acts.



57. Note 50, supra.



58. First Periodical Report of the Boundary Commission for England [Cmd.

9311] (1954), 4, par.19.



59. Under the 1949 Act, see note 50, supra, the intervals between

reports were to be not less than three nor more than seven years, with

certain qualifications.  The 1958 Act raised the minimum to ten and the

maximum to fifteen years.



60. First Periodical Report, supra, note 58, at 4, par. 20.



61. 582 H.C.Deb. (5th ser.1957-1958), 30.



62. See The Federalist, No. 56, supra, note 38; Tudor, Life of James

Otis (1823), 188-190.



63. Griffith, The Rise and Development of the Gerrymander (1907)

(hereafter, Griffith), 23-24.



64. Luce, Legislative Principles (1930) (hereafter, Luce), 336-342.



65. Griffith 25



66. Griffith 15-16, n. 1.



67. Griffith 28.



68. Carpenter 48-49, 54; Griffith 26, 28-29; Luce 339-340.



69. Carpenter 87; Griffith 26-29, 31.



70. II Farrand, Records of the Federal Convention (1911), 241.



71. The power was provided. Art. I,  4, cl. 1.



72. III Elliot's Debates (2d ed. 1891), 367; II id. at 50-51.



73. See Madison, in I Farrand, op. cit. supra, note 70, at 321:  "The

great difficulty lies in the affair of Representation, and if this could

be adjusted, all others would be surmountable."



74. See The Federalist, No. 62 (Wright ed.1961), at 408-409.



75. See The Federalist, No. 54, id. at 369-374.



76. Carpenter 130.



77. Jefferson, Notes on the State of Virginia (Peden ed.1955), 118-119. 

See also II writings of Thomas Jefferson (Memorial ed.1903), 160-162.



78. Carpenter 139-140.



79. Griffith 102-104



80. Griffith 104-105



81. Luce 343-350.  Bowen, supra, note 25, at 17-18, records that, in

1824 Providence County, having three-fifths of Rhode Island's

population, elected only twenty-two of its seventy-two representatives,

and that the town of Providence, more than double the size of Newport,

had half Newport's number of representatives.



82. Carpenter 130-137; Luce 364-367; Griffith 116-117.



83. See 14 Stat. 428; 15 Stat. 2, 14, 41.



84. Various indices of population were employed among the States which

took account of the factor of numbers.  Some counted all inhabitants,

e.g., N.J.Const., 1844, Art. IV,  3; some, only white inhabitants, e.g.,

Ill.Const., 1848, Art. III,  8; some, male inhabitants over twenty-one,

e.g., Ind.Const., 1851, Art. IV,  4-5; some, qualified voters, e.g.,

Tenn.Const., 1834, Art. II,  4 to 6; some excluded aliens, e.g.,

N.Y.Const., 1846, Art. III,  4, 5 (and untaxed persons of color); some

excluded untaxed Indians and military personnel, e.g., Neb.Const.,

1866-1867, Art. II,  3.  For present purposes, these differences,

although not unimportant as revealing fundamental divergences in

representation theory, will be disregarded.



85. Ore.Const., 1857, Art. IV,  5, 6, 7; Ill.Const., 1848, Art. III,  8,

9; Ind.Const., 1851, Art. IV,  4, 5, 6; Minn.Const., 1857, Art. IV,  2;

Wis.Const., 1848, Art. IV,  3 to 5; Mass.Const., 1780, Amends. XXI,

XXII; Neb.Const., 1866-1867, Art. II,  3.  All of these but Minnesota

made provision for periodic reapportionment.  Nevada's Constitution of

1864, Art. XV,  13, provided that the federal censuses and interim state

decennial enumerations should serve as the bases of representation for

both houses, but did not expressly require either numerical equality or

reapportionment at fixed intervals .



Several of these constitutions contain provisions which forbid splitting

counties or which otherwise require recognition of local boundaries. 

See, e.g., the severe restriction in Ill.Const., 1848, Art. III,  9. 

Such provisions will almost inevitably produce numerical inequalities. 

See, for example, University of Oklahoma, Bureau of Government Research,

Legislative Apportionment in Oklahoma (1956), 21-23.  However, because

their effect in this regard will turn on idiosyncratic local factors,

and because other constitutional provisions are a more significant

source of inequality, these provisions are here disregarded.



86. Tenn.Const., 1834, Art. II,  4 to 6 (two-thirds of a ratio entitles

a county to one representative in the House); W.Va.Const., 1861-1863,

Art. IV,  4, 5, 7, 8, 9 (one-half of a ratio entitles a county to one

representative in the House); Mich.Const., 1850, Art. IV,  2 to 4

(one-half of a ratio entitles each county thereafter organized to one

representative in the House).  In Oregon and Iowa, a major-fraction rule

applied which gave a House seat not only to counties having a moiety of

a single ratio, but to all counties having more than half a ratio in

excess of the multiple of a ratio.  Ore.Const., 1857, Art. IV,  6, note

85, supra; Iowa Const., 1857, Art. III,  33, 34, 35, 37, note 89, infra.



87. See Bone, States Attempting to Comply with Reapportionment

Requirements, 17 Law & Contemp.Prob. 387, 391 (1952).



88. It also appears, although the section is not altogether clear, that

the provisions of West Virginia's Constitution controlling apportionment

of senators would operate in favor of the State's less populous regions

by limiting any single county to a maximum of two senators. 

W.Va.Const., 1861-1863, Art. IV,  4.



89. Iowa Const., 1857, Art. III,  33, 34, 35, 37.



90. N.Y.Const., 1846, Art. III,  4, 5 (except Hamilton County);

Kan.Const., 1859, Art. 2,  2; Art. 10.  The Kansas provisions require

periodic apportionment based on censuses, but do not in terms demand

equal districts.



91. Ohio Const., 1851, Art. XI,  1 to 5.  See Art. XI,  6 to 9 for

Senate apportionment.



92. Me.Const., 1819, Art. IV, Pt. First,  2, 3.  See Art. IV, Pt.

Second,  2, for Senate apportionment based on numbers.



93. Mo.Const., 1865, Art. IV,  2, 7, 8.  See Art. IV,  4 to 8, for

Senate apportionment based on numbers.



94. Towns smaller than one hundred and fifty, if so situated that it was

"very inconvenient" to join them to other towns for voting purposes,

might be permitted by the legislature to send a representative.



95. N.H.Const., 1792, Pt. Second,  IX to XI; Pt. Second,  XXVI.



96. Pa.Const., 1838, as amended, Art. I,  4, 6, 7.



97. Conn.Const., 1818, Art. Third,  3.



98. Vt.Const., 1793, c. II,  7.



99. R.I.Const., 1842, Art. VI,  1.



100. N.J.Const., 1844, Art. IV,  2, cl. One.



101. Conn.Const., 1818, Amend. II.



102. Vt.Const., 1793, Amend. 23.



103. N.J.Const., 1844, Art. IV,  3, cl. One



104. R I.Const., 1842, Art. V,  1.



105. Ark.Const., 1868, Art. V,  8, 9; Va.Const., 1864, Art. IV,  6 (this

constitution was in effect when Virginia ratified the Fourteenth

Amendment); Va.Const., 1870, Art. V,  4 (this was Virginia's

Reconstruction Act convention constitution); Miss.Const., 1868, Art. IV,

 33 to 35; Tex.Const., 1868, Art. III,  11, 34.  The Virginia

Constitutions and Texas' provisions for apportioning its lower chamber

do not, in terms, require equality of numbers, although they call for

reapportionment following a census.  In Arkansas, the legislature was

authorized, but not commanded, to reapportion periodically; it is not

clear that equality was required.



106. N.C.Const., 1868, Art. II,  6, 7.  See Art. II,  5, for Senate

apportionment based on numbers.



107. S.C.Const., 1868, Art. I,  34; Art. II,  4 to 6.



108. La.Const., 1868, Tit. II, Arts. 20, 21.  See Tit. II, Arts. 28 to

30, for Senate apportionment based on numbers.



109. Ala.Const., 1867, Art. VIII,  1.  See Art. VIII,  3, for Senate

apportionment based on numbers.



110. S.C.Const., 1868, Art. II,  8.



111. Fla.Const., 1868, Art. XIV, par. 1.  See Art. XIV, par. 2, for

Senate apportionment.



112. Ga.Const., 1868, Art. III,  2.  The extent of legislative authority

to alter these districts is unclear, but it appears that the structure

of three contiguous counties for each of forty-four districts is meant

to be permanent.



113. Ga.Const., 1868, Art. III,  3.  The extent of legislative authority

to alter the apportionment is unclear, but it appears that the

three-tiered structure is meant to be permanent.



114. See, e.g., Durfee, Apportionment of Representation in the

Legislature:  A Study of State Constitutions, 43 Mich.L.Rev. 1091, 1097

(1945); Short, States That Have Not Met Their Constitutional

Requirements, 17 Law & Contemp.Prob. 377 (1952); Harvey,

Reapportionments of State Legislatures -- Legal Requirements, 17 Law &

Contemp.Prob. 364, 370 (1952).  For an excellent case study of numerical

inequalities deriving solely from a "one member per county" minimum

provision in Ohio, see Aumann, Rural Ohio Hangs On, 46 Nat.Mun.Rev. 189,

191-192 (1957).



115. Dauer and Kelsay, Unrepresentative States, 44 Nat.Mun.Rev. 571, 574

(1955).  (This is the effect of a later Georgia constitutional

provision, Ga.Const., 1945,  2-1501, substantially similar to that of

1868.)  The same three-tiered system has subsequently been adopted in

Florida, Fla.Const., 1885, Art. VII,  3, 4, where its effects have been

inequalities of the order of eighty to one.  Dauer and Kelsay, supra, at

575, 587.



116. The constitutions discussed are those under which the new States

entered the Union.



117. Colo.Const., 1876, Art. V,  45, 47; N.D.Const., 1889, Art. 2,  29,

35; S.D.Const., 1889, Art. III,  5; Wash.Const., 1889, Art. II,  3, 6;

Utah Const., 1895, Art. IX,  2, 4; N.M.Const., 1911, Art. IV, following 

41.  The Colorado and Utah Constitutions provide for reapportionment

"according to ratios to be fixed by law" after periodic census and

enumeration.  In New Mexico, the legislature is authorized, but not

commanded, to reapportion periodically.  North Dakota does not, in

terms, demand equality in House representation; members are to be

assigned among the several senatorial districts, which are of equal

population.



118. Wyo, Const., 1889, Art. III, Legislative Department,  3; Art. III,

Apportionment,  2, 3.



119. Idaho Const., 1889, Art. III,  4.



120. Okla.Const., 1907, Art. V,  10(b) to (j).  See Art. V,  9(a), 9(b)

for Senate apportionment based on numbers.



121. Mont.Const., 1889, Art. VI,  2, 3



122. Mont.Const., 1889, Art. V,  4; Art. VI,  4.  The effective

provisions are, first, that there shall be no more than one senator from

each county, and, second, that no senatorial district shall consist of

more than one county.



123. Alaska Const., 1956, Art. VI,  7; Art. XIV,  2.  The exact

boundaries of the districts may be modified to conform to changes in

House districts, but their numbers of senators and their approximate

perimeters are to be preserved.



124. Hawaii Const., 1950, Art. III,  2



125. Alaska Const., 1956, Art. VI,  3, 4, 6.  The method of equal

proportions is used.



126. Hawaii Const., 1950, Art. III,  4.  The method of equal proportions

is used, and, for sub-apportionment within the four "basic" areas, a

form of moiety rule obtains.



127. Ariz.Const., 1910, Art. IV, Pt. 2,  1.  On the basis of 1910 census

figures, this apportionment yielded, for example, a senatorial ratio

differential of more than four to one between Mohave and Cochise or

between Mohave and Maricopa Counties.  II Thirteenth Census of the

United States (1910), 71-73.



128. The pertinent state constitutional provisions are set forth in

tabular form in XIII Book of the States (1960-1961), 54-58, and

Greenfield, Ford and Emery, Legislative Reapportionment:  California in

National Perspective (University of California, Berkeley, 1959), 81-85. 

An earlier treatment, now outdated in several respects but still useful,

is Durfee, supra, note 114.  See discussions in Harvey, supra, note 114;

Shull, Political and Partisan Implications of State Legislative

Apportionment, 17 Law & Contemp.Prob. 417, 418-421 (1952).



129. Nebraska's unicameral legislature is included in this count.



130. Greenfield, Ford and Emery, supra, note 128, at 7.



131. Harvey, supra, note 114, at 367.  See Tabor, The Gerrymandering of

State and Federal Legislative Districts, 16 Md.L.Rev. 277, 282-283

(1956).



132. See, e.g., Mather and Ray, The Iowa Senatorial Districts Can Be

Reapportioned -- A Possible Plan, 39 Iowa L.Rev. 535, 536-537 (1954).



133. See, e.g., Walter, Reapportionment and Urban Representation, 195

Annals of the American Academy of Political and Social Science 11, 12-13

(1938); Bone, supra, note 87.  Legislative inaction and state

constitutional provisions rejecting the principle of equal numbers have

both contributed to the generally prevailing numerical inequality of

representation in this country.  Compare Waltersupra, with Baker, One

Vote, One Value, 47 Nat.Mun.Rev. 16, 18 (1958).



134. See, e.g., Griffith 116-117; Luce 364-367, 370; Merriam, American

Political Ideas (1929), 244-245; Legislation, Apportionment of the New

York State Senate, 31 St. John's L.Rev. 335, 341-342 (1957).



135. In 1947, the Boundary Commission for England, . . . impressed by

the advantages of accessibility [that large compact urban regions] . . .

enjoy over widely scattered rural areas . . . , came to the conclusion

that they could conveniently support electorates in excess of the

electoral quota, and would, in the majority of cases, prefer to do so,

rather than suffer severance of local unity for parliamentary purposes

-- that, "in general, urban constituencies could more conveniently

support large electorates than rural constituencies. . . ."  Initial

Report of the Boundary Commission for England [Cmd. 7260] (1947), 5. 

See also Mackenzie 110-111; De Grazia, General Theory of Apportionment,

17 Law & Contemp.Prob. 256, 261-262 (1952).



136. See Walter, supra, note 133; Walter, Reapportionment of State

Legislative Districts, 37 Ill.L.Rev. 20, 37-38 (1942).  The urban-rural

conflict is often the core of apportionment controversy.  See Durfee,

supra, note 114, at 1093-1094; Short, supra, note 114, at 381.



137. Baker, Rural Versus Urban Political Power (1955), 11-19; MacNeil,

Urban Representation in State Legislatures, 18 State Government 59

(1945); United States Conference of Mayors, Government Of the People, By

the People, For the People (ca.1947).



138. See, in addition to the authorities cited in notes 130, 131, 136

and 137, supra, and 140 to 144, infra (all containing other examples

than those remarked in text), Hurst, The Growth of American Law, The Law

Makers (1950), 41-42; American Political Science Assn., Committee on

American Legislatures, American State Legislatures (Zeller ed.1954),

34-35; Gosnell, Democracy, The Threshold of Freedom (1948), 179-181;

Lewis, Legislative Apportionment and the Federal Courts, 71 Harv.L.Rev.

1057, 1059-1064 (1958); Friedman, Reapportionment Myth, 49 Nat.Civ.Rev.

184, 185-186 (1960); 106 Cong.Rec. 14901-14916 (remarks of Senator Clark

and supporting materials); H.R.Rep. No. 2533, 85th Cong., 2d Sess. 24;

H.R.Doc. No.198, 84th Cong., 1st Sess. 38-40; Hadwiger, Representation

in the Missouri General Assembly, 24 Mo.L.Rev. 178, 180-181 (1959);

Hamilton, Beardsley and Coats, Legislative Reapportionment in Indiana: 

Some Observations and a Suggestion, 35 Notre Dame Law. 368-370 (1960);

Corter, Pennsylvania Ponders Apportionment, 32 Temple L.Q. 279, 283-288

(1959).  Concerning the classical gerrymander, see Griffith, passim;

Luce 395-404; Brooks, Political Parties and Electoral Problems (3d

ed.1933), 472-481.  For foreign examples of numerical disproportion, see

Hogan, Election and Representation (1945), 95; Finer, Theory and

Practice of Modern Government (Rev. ed.1949), 551-552.



139. Baker, supra, note 137, at 11. Recent New Jersey legislation

provides for reapportionment of the State's lower House by executive

action following each United States census subsequent to that of 1960. 

N.J.Laws 1961, c. 1.  The apportionment is to be made on the basis of

population, save that each county is assured at least one House seat. 

In the State's Senate, however, by constitutional command, each county

elects a single senator, regardless of population.  N.J.Const., 1947,

Art. IV,  II, par. 1.



140. Note, 42 Minn.L.Rev. 617, 618-619 (1958).



141. Greenfield, Ford and Emery, supra, note 128, at 3.



142. University of Oklahoma, Bureau of Government Research, The

Apportionment Problem in Oklahoma (1959), 16-29.



143. 1 Labor's Economic Rev. 89, 96 (1956).



144. Dauer and Kelsay, Unrepresentative States, 44 Nat.Mun.Rev. 571,

572, 574 (1955).



145. See the Second Schedule to the House of Commons (Redistribution of

Seats) Act, 1949, 12 & 13 Geo. VI, c. 66, as amended by the House of

Commons (Redistribution of Seats) Act, 1958, 6 & 7 Eliz. II, c. 26,  2,

and the English experience described in text at notes 50 to 61, supra. 

See also the Report of the Assembly Interim Committee on Elections and

Reapportionment, California Assembly (1951) (hereafter, California

Committee Report), 37: The geographic -- the socioeconomic -- the

desires of the people -- the desires of the elected officeholders -- the

desires of political parties -- all these can and do legitimately

operate not only within the framework of the "relatively equal in

population districts" factor, but also within the factors of contiguity

and compactness.  The county and Assembly line legal restrictions

operate outside the framework of theoretically "equal in population

districts."  All the factors might conceivably have the same weight in

one situation; in another, some factors might be considerably more

important than others in making the final determination. A Virginia

legislative committee adverted to . . . many difficulties such as

natural topographical barriers, divergent business and social interests,

lack of communication by rail or highway, and disinclinations of

communities to breaking up political ties of long standing, resulting in

some cases of districts requesting to remain with populations more than

their averages, rather than have their equal representation with the

changed conditions. Report of the Joint Committee on the Reapportionment

of the State into Senatorial and House Districts, Virginia General

Assembly, House of Delegates, H. Doc. No. 9 (1922), 1-2.  And the

Tennessee State Planning Commission, concerning the problem of

congressional redistricting in 1950, spoke of a tradition [which]

relates to the sense of belonging -- loyalties to groups and items of

common interest with friends and fellow citizens of like circumstance,

environment or region. Tennessee State Planning Commission, Pub. No.

222, Redistricting for Congress (1950), first page.



146. See, e.g., California Committee Report at 52.



. . .  [T]he reapportionment process is, by its very nature, political.

. . .  There will be politics in reapportionment as long as a

representative form of government exists. . . .



It is impossible to draw a district boundary line without that line's

having some political significance. . . .



147. See, e.g., S, Celler, Congressional Apportionment -- Past, Present,

and Future, 17 Law & Contemp.Prob. 268 (1952), speaking of the history

of congressional apportionment:



. . .  A mere reading of the debates [from the Constitutional Convention

down to contemporary Congresses] on this question of apportionment

reveals the conflicting interests of the large and small states and the

extent to which partisan politics permeates the entire problem.



148. See Standards for Congressional Districts (Apportionment), Hearings

before Subcommittee No. 2 of the Committee on the Judiciary, House of

Representatives, 86th Cong., 1st Sess. 23, concerning a proposed

provision for judicial enforcement of certain standards in the laying

out of districts:



Mr. KASEM.  You do not think that that [a provision embodying the

language:  "in as compact form as practicable"] might result in a

decision depending upon the political inclinations of the judge?



Mr. CELLER.  Are you impugning the integrity of our Federal judiciary?



Mr. KASEM.  No; I just recognize their human frailties. For an instance

of a court torn, in fact, or fancy, over the political issues involved

in reapportionment, see State ex rel. Lashly v. Becker, 290 Mo. 560, 235

S.W. 1017, and especially the dissenting opinion of Higbee, J., 290 Mo.

at 613, 235 S.W. at 1037.



149. See text at notes 139-143, supra.



150. Decisions of state courts which have entertained apportionment

cases under their respective state constitutions do not, of course,

involve the very different considerations relevant to federal judicial

intervention.  State court adjudication does not involve the delicate

problems of federal-state relations which would inhere in the exercise

of federal judicial power to impose restrictions upon the States'

shaping of their own governmental institutions.  Moreover, state

constitutions generally speak with a specificity totally lacking in

attempted utilization of the generalities of the Fourteenth Amendment to

apportionment matters.  Some expressly commit apportionment to state

judicial review, see, e.g., N.Y.Const., 193, Art. III,  5, and, even

where they do not, they do precisely fix the criteria for judicial

judgment respecting the allocation of representative strength within the

electorate.  See, e.g., Asbury Park Press. Inc., v. Woolley, 33 N.J. 1,

161 A.2d 705.



151. Appellants' suggestion that, although no relief may need be given,

jurisdiction ought to be retained as a "spur" to legislative action does

not merit discussion.



152. See note 24, supra. HARLAN, J., dissenting (Footnotes)



1. The relevant provisions of the Tennessee Constitution are Art. II,  5

and 6:



Sec. 5.  Apportionment of representatives. -- The number of

Representatives shall, at the several periods of making the enumeration,

be apportioned among the several counties or districts, according to the

number of qualified voters in each, and shall not exceed seventy-five,

until the population of the State shall be one million and a half, and

shall never exceed ninety-nine; Provided, that any county having

two-thirds of the ratio shall be entitled to one member.



Sec. 6.  Apportionment of senator. -- The number of Senators shall, at

the several periods of making the enumeration, be apportioned among the

several counties or districts according to the number of qualified

electors in each, and shall not exceed one-third the number of

representatives.  In apportioning the Senators among the different

counties, the fraction that may be lost by any county or counties, in

the apportionment of members to the House of Representatives, shall be

made up to such county or counties in the Senate, as near as may be

practicable.  When a district is composed of two or more counties, they

shall be adjoining, and no counties shall be divided in forming a

district.



2. This formula is not clearly spelled out in the opinion, but it is

necessarily inferred from the figures that are presented.  Knox County,

for example, is said to have a "total representation" of 7.25.  It

elects (1) three direct representatives (value 3.00); (2) one

representative from a two-county district (value .50); (3) one direct

senator (value 3.00), and (4) one senator in a four-county district

(value .75).  See Appendix to opinion of MR. JUSTICE CLARK, ante



3. If this "adjusted" formula for measuring "total representation" is

applied to the other "horribles" cited in the concurring opinion (ante,

p. 255), it reveals that these counties -- which purportedly have equal

"total representation" but distinctly unequal voting population -- do

not have the same "total representation" at all.  Rather than having the

same representation as Rutherford County, Moore County has only about

40% of what Rutherford has.  Decatur County has only 55% of the

representation of Carter County.  While Loudon and Anderson Counties are

substantially underrepresented, this is because of their proximity to

Knox County, which outweighs their votes in the Sixth Senatorial

District and in the Eighth Floterial District.



4. These disparities are as serious, if not more so, when my Brother

CLARK's formula is applied to the appellants' proposal.  For example, if

the seven counties chosen by him as illustrative are examined as they

would be represented under the appellants' distribution, Moore County,

with a voting population of 2,340, is given more electoral strength than

Decatur County, with a voting population of 5,563.  Carter County

(voting population 23,302) has 20% more "total representation" than

Anderson County (voting population 33,990), and 33% more than Rutherford

County (voting population 25,316).



5. Murfreesboro, Rutherford County (pop. 16,017); Elizabethton, Carter

County (pop. 10,754); Oak Ridge, Anderson County (pop. 7,387). 

Tennessee Blue Book, 1960, pp.143-149.



6. For example, Carter and Washington Counties are each approximately

60% as large as Maury and Madison Counties in terms of square miles, and

this may explain the disparity between their "total representation"

figures.



7. For example, in addition to being "semi-urban," Blount County is the

location of the City of Alcoa, where the Aluminum Company of America has

located a large aluminum smelting and rolling plant.  This may explain

the difference between its "total representation" and that of Gibson

County, which has no such large industry and contains no municipality as

large as Maryville.



8. For example, Chester County (voting population 6,391) is one of those

that is presently said to be overrepresented.  But under the appellants'

proposal, Chester would be combined with populous Madison County in a

"floterial district" and with four others, including Shelby County, in a

senatorial district.  Consequently, its total representation according

to the Appendix to my Brother CLARK's opinion would be .19.  (Ante, ) 

This would have the effect of disenfranchising all the county's voters. 

Similarly, Rhea County's almost 9,000 voters would find their voting

strength so diluted as to be practically nonexistent.



9. For example, it is primarily the eastern portion of the State that is

complaining of malapportionment (along with the Cities of Memphis and

Nashville).  But the eastern section is where industry is principally

located and where population density, even outside the large urban

areas, is highest.  Consequently, if Tennessee is apportioning in favor

of its agricultural interests, as constitutionally it was entitled to

do, it would necessarily reduce representation from the east.



10. For example, sound political reasons surely justify limiting the

legislative chambers to workable numbers; in Tennessee, the House is set

at 99 and the Senate at 33.  It might have been deemed desirable,

therefore, to set a ceiling on representation from any single county so

as not to deprive others of individual representation.  The proportional

discrepancies among the four counties with large urban centers may be

attributable to a conscious policy of limiting representation in this

manner.



11. For example, Moore County is surrounded by four counties each of

which has sufficient voting population to exceed two-thirds of the

average voting population per county (which is the standard prescribed

by the Tennessee Constitution for the assignment of a direct

representative), thus qualifying for direct representatives. 

Consequently Moore County must be assigned a representative of its own,

despite its small voting population, because it cannot be joined with

any of its neighbors in a multi-county district, and the Tennessee

Constitution prohibits combining it with nonadjacent counties.  See note

1, supra. 