Alito opposed to Baker v. Carr

[Ramo]

I don't see the anti-democraticness of the US Senate as an issue in either case, do you? Doesn't matter how democratic the Senate is, it isn't going anywhere.

It isn't. The US Senate's in the Constitution.

However, the court has ruled that a similar situation in the states violates the equal protection clause.

The equal protection clause refers specifically to States, so the US Senate's irrelevant to Brennan's argument.

Almost always, but electors had (and still have) a lot of power. You do end up voting for the elector, who votes for the person. And, yes, the system allows a loser in the popular vote to win the Presidency. It also makes races much closer than their popular vote would indicate (except for a few occasions).

Actually, the electoral college almost always amplifies popular victory margins, except in very close elections.

But the victory margin doesn't matter. It's who wins. And the simple fact is that the popular winner almost always wins the electoral vote except for in a few very, very close elections.

[Imran Siddiqui]

The equal protection clause refers specifically to States

However, the Due Process Clause applies to all branches of government and an argument most definetly can be made that "one man, one vote" is a substantive due process right. I don't believe the Supreme Court has bit on that argument yet.

And the simple fact is that the popular winner almost always wins the electoral vote except for in a few very, very close elections.

And when the popular vote winner doesn't win? Then the results are more 'republic-like' than 'democracy-like', no?

[Ramo]

However, the Due Process Clause applies to all branches of government and an argument most definetly can be made that "one man, one vote" is a substantive due process right. I don't believe the Supreme Court has bit on that argument yet.

Which is totally irrelevent since Brennan didn't rely on substantive due process in Baker or Reynolds.

And when the popular vote winner doesn't win? Then the results are more 'republic-like' than 'democracy-like', no?

Well, the two concepts aren't mutually exclusive, but yes it is less democratic when the popular winner loses. But I repeat, this only happens very rarely and only in close elections where popular legitimacy is questionable in any case.

[Imran Siddiqui]

Which is totally irrelevent since Brennan didn't rely on substantive due process.

Are you saying that if equal protection applied to the federal government (which is basically does through substantive due process of the 5th Amendment) that Brennan would have struck down the US Senate?

Well, the two concepts aren't mutually exclusive, but yes it is less democratic when the popular winner loses. But I repeat, this only happens very rarely and only in close elections where popular legitimacy is questionable in any case.

So the system doesn't matter, as long as the result is the same?

[Ramo]

Are you saying that if equal protection applied to the federal government (which is basically does through substantive due process of the 5th Amendment) that Brennan would have struck down the US Senate?

First off the structure of the US Senate is specifically in the US Constitution (and written almost contemporaneously with the 5th Amendment), so that'd certainly be a questionable action.

Secondly, substantive due process is simply not the same thing as equal protection. I don't know why you're insisting that they're equivalent.

So the system doesn't matter, as long as the result is the same?

The structure of the electoral system matters only to the extent that it accurately reflects popular will. Obviously a popular election is closer to that, but you can't seriously argue that the electoral vote doesn't come pretty close.

[Imran Siddiqui]

First off the structure of the US Senate is specifically in the US Constitution (and written almost contemporaneously with the 5th Amendment), so that'd certainly be a questionable action.

Secondly, substantive due process is simply not the same thing as equal protection. I don't know why you're insisting that they're equivalent.

5th Amendment comes after Article 1, so it'd take precedence.

And I assert that substantive due process of the 5th Amendment has included equal protection because... well, it has. People sue the federal government on discrimination using the same arguments as they would against the states with equal protection.

The structure of the electoral system matters only to the extent that it accurately reflects popular will.

So if it comes 'close enough' that's ok? You don't really mind that the voters are really just choosing electors?

[Ramo]

And I assert that substantive due process of the 5th Amendment has included equal protection because... well, it has. People sue the federal government on discrimination using the same arguments as they would against the states with equal protection.

From Bolling v. Sharpe:

''The Fifth Amendment, which is applicable in the District of Columbia, does not contain an equal protection clause as does the Fourteenth Amendment which applies only to the states. But the concepts of equal protection and due process, both stemming from our American ideal of fairness, are not mutually exclusive. The 'equal protection of the laws' is a more explicit safeguard of prohibited unfairness than 'due process of law,' and, therefore, we do not imply that the two are always interchangeable phrases. But, as this Court has recognized, discrimination may be so unjustifiable as to be violative of due process.

So only if the Court deems the discrimination particularly unjustifiable can it constitute a breach of the 5th Amendment. The equal protection clause is a broader protection against discrimination than substantive due process through the Fifth. So the argument doesn't necessarily carry to the federal level.

Unless you happen to believe that the Senate is particularly discriminatory to warrant using the Fifth. I'm not really inclined to buy that argument since the House has greater power, and due the explicit mention of the Senate's structure in the Constitution, the lack of intent in the authors of the 5th Amendment, the lack of anything done in the past two centuries, etc.

So if it comes 'close enough' that's ok? You don't really mind that the voters are really just choosing electors?

Not really. As I said, it's not "ok," but it's not a big deal either.

[Imran Siddiqui]

Unless you happen to believe that the Senate is particularly discriminatory to warrant using the Fifth.

As discriminatory as state Senators being elected from counties. Or do you believe that those actions weren't that discriminatory? After all, blacks in Southern states didn't really have much of a voice in electing Senators, did they?

[Sava]

Alito = scumbag

[Ramo]

As discriminatory as state Senators being elected from counties.

That's not the question. The equal protection clause is a stronger protection against discrimination than substantive due process. The question is whether the test in Bolling is met. I don't know if it is, due to the greater power of the House. If you think that the test is met, I don't see what your problem with Baker is.

Or do you believe that those actions weren't that discriminatory? After all, blacks in Southern states didn't really have much of a voice in electing Senators, did they?

Dude, that argument makes absolutely no sense. Literacy tests, grandfather clauses, white primaries, etc. kept blacks from electing Senators (and any other politician), not the nature of the Senate.

[Imran Siddiqui]

The question is whether the test in Bolling is met. I don't know if it is due to the greater power of the House. If you think that the test is met, I don't see what your problem with Baker is.

I'd say that if you thought that the discrimination was so bad in the states carving up their positions, that it overrode political question concerns, it would most definitely should be considered 'unjustifiable' enough for the US Senate. Especially when 'political question' has been used for many a state governance issue. And if it is a 'one man, one vote' issue, would that not be 'unjustifiable' enough?

But the Supreme Court (or any Court for that matter) has never come close to striking the US Senate down or articulating why the US Senate is a justifiable violation. And I don't think Brennan would have the balls to even entertain such a notion... so in the end, those cases are results of the states being easy to pick on during the Warren Court era.

Literacy tests, grandfather clauses, white primaries, etc. kept blacks from electing Senators (and any other politician), not the nature of the Senate.

Are you saying that if there were no 'tests' that the blacks in the South would have good representation in the Senate? I would think in states were they were outnumbered, they'd have no chance of electing a black man.

[Ramo]

I'd say that if you thought that the discrimination was so bad in the states carving up their positions, that it overrode political question concerns, it would most definitely should be considered 'unjustifiable' enough for the US Senate. Especially when 'political question' has been used for many a state governance issue.

The US states weren't carved up to create permanent reactionary majorites in the Senate. The same isn't true for state legislatures.

The point, once more is that due process requires a greater degree of discrimination than the equal protection clause. And the legislative districts constituted a far greater degree of discrimination than the division of states. And there's the House that balances things at a federal level. So that's three things going against applying Baker to dismantling the Senate.

Are you saying that if there were no 'tests' that the blacks in the South would have good representation in the Senate? I would think in states were they were outnumbered, they'd have no chance of electing a black man.

Atually, Blacks certainly had majorities in some states - Mississippi and South Carolina come to mind. So, no, the Senate was definitely not discriminatory in this respect. The biggest reason why more blacks weren't elected to the Senate (excluding MS) immediately following the Civil War was that Senators were elected by state legislatures rather than the people.

In fact, I would say that creating districts with large black supermajorities have hampered their political interests (leading to the extinction of the white Southern Dem).

[Zkribbler]

Originally posted by Imran Siddiqui
Um... isn't that the same way the US Senate is set up (with States replacing Counties). Are you saying that the US Congress is not a republic?

A couple of difference. First, the consititutional guarantee for a republic only goes to states, not to the federal government.

Second, representation in the Senate based upon geographic areas rather than population is a political compromise resulting from 13 nations coming together to form 1. No state was the result of various counties coming together; rather, counties are creations of the states.

[Odin]

Alito is aginst the 1 person = 1 vote decision? This is a 1000 times worse than wanting to overturn Roe, appointing this scumbag is an attack on Democracy itself. Every senator who votes yes for this scumbag should be hanged for treason.

[Imran Siddiqui]

The US states weren't carved up to create permanent reactionary majorites in the Senate. The same isn't true for state legislatures.

And? Doesn't disparate impact hold any sway?

The point, once more is that due process requires a greater degree of discrimination than the equal protection clause. And the legislative districts constituted a far greater degree of discrimination than the division of states. And there's the House that balances things at a federal level. So that's three things going against applying Baker to dismantling the Senate.

I don't know how you can say the state districts were more discriminatory than state divisions. A black person has a greater hurdle in a state like, say, Arizona than in, say, New York in getting his voice heard (because of minority percentages) for their Senator. And an average citizen in New York has less of a say in the Senate (per citizen) then an average citizen of Arizona (dividing the number of citizens for each Senator).

If the problem was discriminatory districts based on race, the solution is to get rid of those districts, not totally overhauling the way states create districts.

What was behind the changes were ideas of one man, one vote. Wouldn't it be expected that one man, one vote would be important enough to fall into due process?

If the discrimination was NOT great enough to fall upon due process, and, thus, barely gets into equal protection, then why shouldn't the Court have fallen back on it being a political question as it had so many times in the past?