In the 1960s through a series of decisions with no basis in law, the courts changed the make-up of the legislatures of some of the States including Nevada. This was done to turn our Republic into a democracy. This article lays out how and why this happened and the remedies that we have at our disposal to fix this.
[For a more technical explanation with full quotes, please go here]
The Unconstitutional Redistricting of Nevada
The Sixteenth Amendment was controversial. The first time that the Supreme Court had a chance to clarify this Amendment was in 1916 in the case of Brushaber v. Union Pacific R. Co. – 240 U.S. 1 (1916). The Supreme Court was flooded with so many different arguments that it became difficult even to classify all of them. Chief Justice White carefully cut through the mess by explaining that the purpose of the Amendment was to clarify the Powers of the Constitution; otherwise the interpretations sought would result in one portion of the Constitution destroying another part of the Constitution and such destructive ends could not possibly be the intention of the authors of the Amendment.
Over forty years later, the Supreme Court looked to interpret the Fourteenth Amendment to the Court’s political agenda while disregarding the valid precedent from the earlier Court that, “When an Amendment to the Constitution has multiple choices for interpretation, that Amendment must be interpreted as enhancing the Constitution rather than destroying key constitutional principles”.
The Supreme Court made a series of decisions in the early 1960s such as Baker v. Carr 369 U.S. 186 (1962) and Reynolds v. Sims 377 U.S. 533 (1964). The Supreme Court argued that citizens of lightly populated areas had more representation than the citizens of heavily populated areas and that the Constitution required all citizens to have the same representation because of the Equal Protection Clause of the Fourteenth Amendment. This novel interpretation of the Fourteenth Amendment should require the Supreme Court to alter the makeup of Congress. A more reasonable interpretation of the Fourteenth Amendment would be that the Laws of Congress and the Laws made by the Legislatures of the several States must be applied by government officials to each citizen in the same manner and without prejudice. Rather than subject their bad interpretation to close examination, the Supreme Court simply exempted Congress with historical excuses and applied their interpretation to the Legislatures of some of the States.
In Reynolds v. Sims 377 U.S. 533 (1964), the Supreme Court admitted that the Fourteenth Amendment could not touch the makeup of the United States Congress when it said, “The system of representation in the two Houses of the Federal Congress is one ingrained in our Constitution, as part of the law of the land. It is one conceived out of compromise and concession indispensable to the establishment of our federal republic”. Essentially, the Fourteenth Amendment could not be interpreted to undo the “Will of the People” as expressed in the United States Constitution for Congress.
The United States Constitution created a Republic by design that provided for representation that was not based upon equal population (as would be required to establish a Democracy). The purpose of the Equal Protection Clause of the Fourteenth Amendment was to insure that government applied the law in the same manner to all citizens. In this respect, the Fourteenth Amendment applies equally to the federal government and to all State governments. The Fourteenth Amendment was not intended as a mechanism to alter Constitutions. The Fourteenth Amendment did not authorize the Supreme Court to change the makeup of Congress as that would cause one provision of the Constitution to destroy another. The Constitution can only be Lawfully changed by the Amendment process. Although Congress is allowed to propose Amendments, only the States can Amend the Constitution. The Supreme Court has no authority to alter any provision of the Constitution through interpretation.
The Supreme Court correctly did not change the makeup of Congress. The Supreme Court did, however, change the makeup of some State Legislatures. The Supreme Court decided that State Legislatures were required under the Constitution to be apportioned to give equal representation. This interpretation was as wrong to be applied to the Legislatures of the States as it would have been if the Supreme Court had applied it to Congress. What the Supreme Court overlooked is the fact that while the United States Constitution created the federal government and was the source of the Supreme Court’s Power, the Constitution did not create any of the several States. The Legislatures of the several States were created outside the authority of the United States Constitution “by the Will of the People” of those States through their State Constitutions.
In 2012 the Supreme Court heard the case of National Federation of Independent Business v. Sebelius, Secretary of Health and Human Services, ( ) 648 F. 3d 1235. Chief Justice Roberts brilliantly stated the federal system as a part of the majority decision. Chief Justice Roberts pointed out that the States did not receive their Power from the United States Constitution. The Supreme Court has no Power to alter the makeup of Congress because the Fourteenth Amendment was not intended to grant that Power. The federal government has no Power to alter the makeup of a State Legislature because the Authority for the makeup of the State Legislature comes from that State’s Constitution not the United States Constitution. It should be noted that the United States Constitution guarantees each State a republican form of government, but a republican form of government allows for representation based upon political subdivisions as well as population.
In 1965 the federal government forced the State of Nevada to change the composition of the Nevada Legislature through a federal District court decision. See Dungan v. Sawyer, 250 F.Supp.480 (D. Nev. 1965).
The federal District court found that it had jurisdiction to hear this case and that it had the authority under the Equal Protection clause of the Fourteenth Amendment to the United States Constitution to find and to declare Article IV Section 5 of the Nevada Constitution to be unconstitutional. The federal District court ordered the State of Nevada to change the composition of the Nevada State Legislature. The 1967 and the 1969 Legislatures were radically altered to have their members elected from population based districts. This was done prior to any possible Constitution change allowed by the Nevada Constitution. Subsequently the change became permanent as part of the Nevada Constitution. The removing sections of the Nevada Constitution and of the Nevada statutes and adding new legislation accomplished the redistricting.
None of the actions of the federal District court in 1965 are valid because the federal government has no Constitutional grant of Power to do them. The Supreme Court reexamined the relationship of the federal government to the several States in 2012 in the case of National Federation of Independent Business v. Sebelius, Secretary of Health and Human Services, ( ) 648 F. 3d 1235. That reexamination overturns the findings of the Supreme Court in the 1960s that made several States reapportion their Legislatures.
What we can do:
There are many avenues the citizens of Nevada could pursue to get their Constitution back from federal interference. The simplest solution in my opinion is for the counties to sue in their local courts to void the federal District court’s decision and reestablish the portions of the Nevada Constitution (and NRS sections) that the federal District court mandated be removed.
William F. Horne (click here to contact Mr. Horne and freeNfair will forward to him)
[For a more technical explanation with full quotes, please go here]