History Draws a Line on 'One Man, One Vote'

by Noah Feldman

Noah Feldman, a Bloomberg View columnist, is a professor of constitutional and international law at Harvard University and the author of six books, most recently "Cool War: The Future of Global Competition."

On Tuesday, the Supreme Court heard oral arguments on whether states' drawing of legislative districts should be based on total population, as it is now, or voter population, as some conservatives want. The case, Evenwel v. Abbott, raises a fundamental questionabout who is represented in our democracy. But as so often happens, the oral argument took a turn in the direction of our history with a focus on the drafting of the Constitution.

The key moment came when Justice Elena Kagan asked petitioner William Consovoy what would seem like devastating question: The Constitution requires counting total population when apportioning congressmen, so why should the states have to count voters rather than population?

Consovoy’s answer related to the Constitutional Convention held in Philadelphia in the hot summer of 1787. It’s a bit shocking, so I’ll quote it in full:

Apportionment at the time of Article I's framing was focused on taxation issues, on giving States autonomy with respect to voter qualifications. And there was a real concern. That's why it was a -- the great compromise.

What Consovoy was talking about is the so-called “great compromise” that kept the Constitutional Convention from breaking up over a conflict between states with big populations -- mainly Virginia, Pennsylvania and Massachusetts -- and the coalition of smaller states that included New Jersey, Connecticut, Delaware and Maryland. The core of the compromise was that delegates to the House of Representatives would be based on a state’s population (with blacks counting as three-fifths of whites), while states would each have two senators regardless of size. ...

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