This week, the Supreme Court’s ordered the release of tens of thousands of felons held in California jails this week because prisons didn’t have in-house medical staff, but relied on neighborhood doctors to care for sick prisoners. To commemorate that boneheaded decision, I am launching a new series on previous Supreme Court decisions which illustrate just how inadequate the legal mind is when it makes sweeping policy decisions.
Let’s start with a decision which, like many sweeping Supreme Court decisions, has a superficial appeal but looks worse the more you “get granular” as business people say. It also has a long term effect, usually deleterious, which only the most astute are able to predict This is because lawyers, particularly litigators, from whom most of our judges are chosen, is a profession that by its nature lives primarily in the past.
When one is in court, the issues are almost always historical ones. What happened to whom, when, where and why? One defends or prosecutes in an attempt to mete out responsibility for an act that has already happened. This makes lawyers able historians, but, unfortunately, very poor prognosticators.
The case I have in mind was called Baker vs. Carr, a 1964 Supreme Court case, which held that states would have to allocate legislative seats on the basis of “one man, one vote.” Until then, most States (except for Nebraska which is unique in having a unicameral legislature) had a lower house in which seats were allocated on the basis of population and a Senate, an upper house, which was often allocated on the basis of political subdivisions in the state. Typically, each county would have a single State Senator and State Representatives based on the number of people living in the county. The result was that most states which had any sort of a rural area had a bias among its upper house favoring rural interests, since farmland dominated the land mass of most states, even though the growth of cities had outstripped the population growth of rural America.
Baker vs. Carr changed all that. By a vote of 8-1, the Court ruled that the Constitution mandates the concept of “one man, one vote,” i.e., that all legislative seats must be allocated in the same manner as the House of Representatives is allocated, i.e., after each census, the state must divide the state’s population into the number of seats in each house of its legislature and divide voting precincts as carefully as possible to ensure that each seat represents approximately the same number of people.
At first glance, nothing could seem more fair than the Court’s ruling. Most decisions relying on votes embody some form of “one man one vote” as a basic sense of fairness, whether it is the board of directors of a corporation voting on a new business venture, children in a playground voting on the next game they’ll play or a vote on the Federal budget, the idea seems to be embodied in the idea of democracy itself.
But on reflection (something which seemed to be beyond the ability of eight members of the Court in 1964), there is something a little odd about the decision. For one thing, the Constitution itself repudiated the idea of “one man, one vote” when it created a House of Representatives allocated according to population, but a Senate allocated on the basis on two to a state, whether the state has half a million people or less, like Wyoming, or forty million or more like California. To say that the Constitution mandates the concept of “one man, one vote” is to argue that the Constitution is itself unconstitutional, an obvious absurdity.
What the majority of the Court was trying to accomplish in their sub rosa way was to strengthen the urban centers of America, which they perceived as in need of more political largesse than they were currently receiving. Perhaps too, they thought of their ruling as a means to assist the civil rights movement, since African Americans were in the process of moving into cities and by increasing the representation of the cities, they were creating more legislative seats for the underprivileged.
As a practical matter, they achieved neither goal, instead increasing the power of suburbs at the expense of both rural and urban America. The rural legislators had only a single interest to defend: the farmers in their district. Farmers were always a politically astute bunch who followed the news from the state capital as carefully as they followed the weather reports, so any legislator who voted against their interests sacrificed his political career. As a result, the family farm was still a force to be recognized. Thousands of tweaks to state legislation were necessary to protect the interests of farmers because such legislation would otherwise be “bottled up in the state Senate.” Most of these tweaks did not involve subsidies or massive costs to the state, just simple matters of easing the laws to allow farmers cooperatives or discouraging the urban sprawl that was beginning to appear in rural areas near big cities.
This powerful block did not appeal to many politicians (“FFN” or “F*ck the Farmers after November” as John F. Kennedy used to joke after campaign swings through rural America), but it kept food cheap and local, creating greenswards near major metropolitan areas and providing a happy way of life to millions of Americans. As someone who spent much of his childhood in rural districts of America, I can attest that there were as many happy farmers as there are unhappy lawyers, which is to say, the vast majority of them. Rural America was also more frugal in their spending habits, forcing states to operate efficiently.
But throughout the sixties and the seventies, the urban interests lost their natural sparring partner and rural interests were gradually chipped away. The newly empowered urban legislators did not create a new Eden for cities, however. Instead, since their voters were less one track minded, they could push the interests of real estate developers who converted rural areas into ex-urbs and ex-urbs into suburbs. By the mid-seventies and into the eighties, the family farm died a slow death, its only epitaph a spate of unsuccessful Hollywood movies.
Today, any state with a large urban area, such as Pennsylvania or New York, has an area of urban sprawl and vast areas of underutilized farmland. We still produce a lot of food, but agriculture is dominated by corporate farms and our largely tasteless, genetically modified food is shipped in from other parts of the country. Any family farms are in those states where there are no urban centers or where “family farm” is a bit of a misnomer, involving thousands of acres owned by a single wealthy individual, where the farming is largely performed, not by a yeoman class of independent land owning individuals, but by a work for hire underclass one step above tenant farmers.
Baker slammed through rural America like General Sherman charging through Georgia, leaving behind the ruins of what was once a vibrant way of life. The price we have paid in denying working class Americans independence, in destroying what was once a strong local culture, in altering the way we get our food, in stripping rural areas of its wealth is enormous.
Meanwhile, urban centers have not done any better. They changed from lively, prosperous centers of culture to troubled blighted areas and some of this may have been inevitable even before Baker, but this metamorphosis accelerated after Baker as major corporations took advantage of the projects of newly liberated real estate developers to move out of cities into suburban corporate parks. Today, there are only three kinds of cities: a handful of real cities like New York and Chicago which have survived because of their position as an international, national or regional center, many cities like Houston or Los Angeles which are suburban sprawls in all but name and dead cities like Newark and Detroit. Ask anyone who lived near Newark or Detroit in the early sixties and they will describe an urban area which is a different world.
Amazingly, there actually was a member of the Supreme Court who foresaw all this. Justice John Marshall Harlan, one of the great Supreme Court Justices of all time predicted exactly what would happen, noting that it is not just people who are represented in a legislation, but ways of life, nature, and other abstract notions that make the world a better place. Track down Justice Harlan’s dissent to Baker vs. Carr if you want to read the work of a master at the top of his craft. Then read the majority opinion and ask yourself if these really were the best and the brightest of American jurisprudence.
Maybe it’s significant that Justice Harlan is the only modern Supreme Court Justice who was not educated in an American law school, having gotten his legal training in the United Kingdom.
Thomas F. Berner
www.WeThePeopleBlog.net
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