Baker v. Carr, the census, and the political and statistical geography of the United States: the origin and impact of Public Law 94-171.

• Author: Anderson, Margo
• Position: Law Review Symposium 2011: Baker v. Carr After 50 Years: Appraising the Reapportionment Revolution

An absurd but fundamental incongruence exists in most states between census geography and political electoral geography. That is, the Bureau of Census requires that census tracts, enumeration districts, and blocks all follow "easily recognizable" boundaries such as roads, rivers, and perhaps transmission lines and aqueducts, but not "invisible" property and political lines.

Richard Morrill, 1981 (1)

As we approach the fiftieth anniversary of Baker v. Carr, (2) it is hard to overestimate the impact of the decision. Ending as it did fifty years of massive malapportionment in legislative assemblies throughout the United States, it led to a raft of successor decisions and a domino effect of unanticipated political changes, which were in turn amplified by the passage of the Voting Rights Act (3) three years later in 1965.

My task here, as historian and longtime observer of the federal statistical system, is twofold. First I give some historical context on the numerical issues implicit in the mandate of Article 1, section 2, paragraph 3 of the federal Constitution (4) and the "one person, one vote" standard. (5) Second, I examine the impact of the new standard on the federal statistical system, particularly the decennial census used to apportion and redistrict legislative seats each decade.

1. IT'S ALL ABOUT NUMBERS

   1. Constitutional Origins of the Census

      In the summer of 1787, slightly more than a decade after the thirteen colonies had declared their independence from Great Britain, several dozen men met at Philadelphia to try to improve the existing American national government structure. (6) War had ended in 1783 and the infant nation had returned to peace. Yet severe political and economic problems plagued the country. The Articles of Confederation, finally ratified in 1781 as the framework for the national government, had not been functioning well for a number of years. By the late 1780s, the states were willing to send delegates to discuss amendments. There were many different proposals about what to do, and although these men had the common experience of the Revolutionary Era to unite them, they also had sectional, political, religious, and local interests to divide them.

      The men who gathered in Philadelphia thus faced a delicate and complex set of political questions. On the one hand, they had to empower a national government to deal with recurring problems arising from the unique historical development of the United States. The governments of the individual colonies had few connections with one another prior to independence; they did not easily merge into a United States, and in fact often looked jealously upon one another. One set of issues revolved around replacing the functions the British had served during the Colonial Era: i.e., national defense, diplomacy, trade policy, taxation, the opening of new land or the creation of new colonies. On the other hand, the national government had to respect the autonomy of the individual states, recognize and mediate differences among the states and their citizens, and develop mechanisms to apportion power and tax burdens among the constituent elements of the United States. Revising the national government or devising a new one would be no easy matter. Several prior efforts had failed. Contemporaries might well have expected the men to disband with little accomplished at the end of the summer.

      We know now that did not happen; their deliberations resulted in a fundamentally new and breathtakingly radical governmental structure, which we have lived with ever since. Unlike the Articles, which mandated a one house Congress and no executive branch, the Constitution created three branches of government: executive, legislative and judicial. The legislature was bicameral, with the lower house apportioned among the states according to population and elected by the people, the upper house apportioned among the states and elected by the state legislatures. The executive branch was headed by a President elected by the people through the mechanism of the Electoral College. The new system increased the power of the national government considerably, yet it was also full of checks and balances to guarantee the powers of the states and citizens and to protect against the kind of tyranny the Crown had exercised.

      The complex and relatively explicit structures, the detailed enumeration and delegation of powers, and the system of checks and balances were all mechanisms intended to foster both "a more perfect union" (national unification) and the rights of the individual states. So also was the institution of a decennial census to measure the relative strength of the various elements of the population and periodically readjust the relative power of the states and local areas in the national government. Article 1, section 2 of the Constitution created the House of Representatives, and defined its membership and capacities. (7) Paragraph three of section 2 specified that the representatives and direct taxes were to be "apportioned among the several States which may be included within this Union, according to their respective numbers." (8)

      This simple language provided the solution to one of the fundamental political controversies of the revolutionary era: namely how to allocate representation fairly in legislative assemblies. Before the Revolution, the colonists had protested their lack of representation in the British Parliament. The newly united thirteen colonies also struggled over the problem of the equitable distribution of the burdens and resources of the national government among large and small states. Critics had charged that the Articles of Confederation were an unsatisfactory grounding for a national government precisely because states voted as units, regardless of their disparate wealth or populations.

      The 1787 Constitution allocated representation in the House according to population and in the Senate by state. Since direct taxes were also to be allocated according to population, the large states would gain House representation but incur a higher potential tax burden to the federal government. The strength of each state in the Electoral College would be determined by summing the state's Senate and House members. Finally, the census was to be taken every ten years since the framers were well aware that populations--especially the American population--grew and shifted over time.

      The logic of the census system flowed from the experience and conceptions of the framers. The Founding Fathers debated other methods of allocating political power and tax capacity during the Philadelphia Convention. They discussed apportionments based upon land assessments, other measures of wealth, and population. They agreed that, theoretically, political power should be allocated on the basis of population and that tax capacity derived from wealth. Everyone agreed, however, that population was much easier to measure than wealth and that wealth was highly correlated with population. So, population would be the apportionment measure. The new census and apportionment mechanisms of the federal constitution were thus a crucial piece of the Great Compromise among the large and small states which made a national government possible. The periodic changes that had to take place to account for population growth and change were assigned to an automatic decennial routine, separated from the cycles of more frequent elections for House, Senate, and the Presidency, which were also designed to shift power among the constituent elements of the population.

      But there was one fly in the ointment that would come back to haunt the Framers in future years and that is of particular relevance. That was the question of defining exactly who was part of the "population" deserving the right to political participation in the society and owing responsibility to pay taxes to the state. The fundamental thrust of the discussion in the Constitutional Convention was to use the most expansive rule possible, including, for example, women, children, and the poor in the count, though they neither voted nor were necessarily responsible as individuals for taxes. The rub came when the Framers considered how to treat slaves and Indians. Should the southern states, for example, be granted political representation for their slaves'? At the time southerners considered slaves "property" for purposes of tax assessments but did not count slaves when they apportioned their state legislatures. The double rule of using the same measure for representation and taxation broke down logically for slaves. Further, should Indians, who were generally considered outside the purview of the American polity and as members of foreign states, be counted for representation and taxation?

      The solution to these dilemmas was to hedge the universal rule of counting the population for apportionment with two provisos. The census clause in Article I, section 2, paragraph 3, continued: the "respective Numbers [of the population] ... shall be determined by adding to the whole Number of free Persons, including those bound to Service for a term of Years, and excluding Indians not taxed, three fifths of all other Persons." (9) The Three-Fifths Compromise required the census to count slaves separately so that the slave population could be discounted to three-fifths of the value of the free population for apportionment allocations. The second proviso eliminated "Indians not taxed" from the census altogether. Only people who came to be called "civilized Indians" were to be included in the decennial census count, and hence the apportionment totals. (10)

      Two points should be made about these constitutional provisions. First, the Framers recognized that the numeric decision of the three-fifths rules was arbitrary and only justified as a compromise necessary to move the overall constitutional revision process forward. Second, and relatedly, the Framers defined the...