Representation By Quota: The Decline of Representative Government in America

REPRESENTATION BY QUOTA THE DECLINE OF REPRESENTATIVE GOVERNMENT IN AMERICA

by Eugene W. Hickok Jr.

It seems that many of the issues that have come to dominate recent American poli tical debate reflect a concern with representation. Consider, for example, the debates over the Civil Rights Bill of 1991, the concern about multiculturalism on college campuses, the controversy over the idea of politically correct speech and conduct in t he academy, the notion of -Afro-centric education, the ongoing preoccupation with quotas and affirmative action, and, most recently, the nomination of a black man to sit on the Supreme Court. All of these are debates about representation.

The purpose of th is lecture is to place representation in perspective and to argue that we are undergoing a profound transformation in our understanding of representation. It is a transformation that has occurred over a number of years and it is a transformation that has a ltered our understanding of what representation in a republic is about. It is a transformation that has been encouraged by the leaders of both the Democratic and Republican parties, the Congress, the president, and the courts. And it is my contention that it is a transformation which will lead, gradually, to a decline in representative government.

The Concept of Representation

For the purposes of this analysis, two approaches to representation can be identified. The first is "active" representation. By this I mean an understanding of representation in which "... an individual is expected to press for the interests and desires o f those whom he is presumed to represent." It may be distinguished from "passive" representation, which "... concerns the sourcF or ?ngm of individuals and the degree to which, collectively, they mirror the total society.11

Typically when we think of elect ed representatives we think of their obligation to act in our behalf. They are elected to act for us, press for our interest. In addition, they are expected to recognize that they are accountable to the voters who place them in office. But our approach to representation usually goes beyond -this to embrace the understanding that elected representatives must sometimes make decisions regarding issues that the voters have little or no understanding of or interest in.

1,egislatures must act for the people themselves and therefore who serves in the legislature is of critical concern. In other words, representationshas at least two critical

Dr. Eugene Hickok, a former Bradley Resident Scholar at The Heritage Foundation, is Associate Professor of Political Science at Dickinson College.

He spoke at The Heritage Foundation on July 8, 1991.

ISSN 0272-1155. 01991 by The Heritage Foundation.

dimensions. On the one hand, there is a concern with the individual and how he understands his role as a representative and then goes about attempting to fulfill that role. On the other hand, there is the concern with the institution of representatives assembled and how that institution relates to those who are to be represented, both in terms of its composition and decisions . jerhaps the most famous advocate for representation in a republic was Edmund Burke. Burke recognized that there may indeed be a difference between the desires of a voter and the interests of that voter; the desires of a constituency and the interests of t hat constituency. Elected officials were supposed to serve the interests of the nation, and in that way promote the interests of all who composed that nation. As Hanna Pitkin put it, "the member is to pursue the interest of his constituency rather than do its bidding; the characteristic feature of Te Burkean approach is that such a contrast is possible and even highly meaningful."

For Burke, effective representation of the national -interest could only be achieved through an assembly composed of the natura l aristocracy- because only.-the aristocracy was capable and talented enough to carry out the obligations: of. representation. Representation required the conscious application of reason and deliberation, and that demanded educated individuals who were ca pable of rising above the petty concerns that dominate the lives of most.men.

For others, equally influential in theirwriting on representation, effective representation can only take place when the representative assembly mirrored the society it is suppos ed to represent. This approach to representation emphasizes who is doing the representing more than how it is done. James Wilson, the lawyer from Pennsylvania who helped to design the presidency during the constitutional convention and served on the Supre m e Court during the early years of the republic, once argued that "the portrait is excellent in proportion to its being a good likeness" an asserted that "the legislature ought to be the most exact transcript of the whole society.'l Similarly, John Adams o p ined that legislatures in a republic "should be an exact portrait, in -5 miniature, of the people at large, as it should think, feel, reason -and act like them. For adherents to this descriptive approach to representation - what'i's more popularly referre d to as proportional representation - effective representation depen-ds on "being something rather than doing something" and the goal is to "secure a representational assembly reflecting with more or less mathematical exactness the various divisions in the electorate."'

For Burke and many others, then, representation depends upon how individuals define their obligation to the citizens, region and nation when making decisions as members of an assembly. For other such as Wilson and Adanis,: representation dep ends upon the character and characteristics of those who will make, the decisions. In other words, an individual has to be oUthe society in-order. to represent it. He must be a merchant in order to be able to represent adequately the interests of merchant s , a farmer in order to represent farmers, and so on. But both approaches to representation recognize the distinction between representing individuals, groups, areas and interests and catering to them: . "If we sa4y the political representatives' duty is s imply to please those for whom he acts, then short-term palliatives are likely to b ome preferable to genuine cures, and dramatic symbols to intelligent statesmanship."'T

2

While all of this might seem academic and distant from any discussion of contemporary representation, the fact is that during the formative years of this republic, these very approaches to representation provided the seed for much of the debate that surro u nded the Constitution. Those who had helped to create the new Constitution in 1787, and who campaigned for its ratification, the Federalists, embraced an approach to representation which was regarded as both novel and threatening to those who opposed the Constitution, the Anti-Federalists.

For the Anti-Federalists, good government depended upon size and citizenship. A republic, in order to function, had to be relatively small. This was necessary for a number of reasons. Only in a small republic would it be possible for citizens to elect representatives to an assembly and to recognize they had an ongoing stake in the deliberations of that assembly.

The relationship of the citizen to his government was critical for the opponents to the Constitution. A govern ment too distant, too large, too complex and to elitist was a threat because such a government gradually -will lose touch with'the citizens, gather a momentum of its own, and rob the citizens, of their ability to govern themselves.

The Anti-Federalists al so argued that it was necessary for the government to be directly accountable to the citizens. One means to accomplish this was through' elections, along with short terms of office, frequent rotation of office and a large representative assembly. But that was not enough. "Effective and thoroughgoing responsibility is to be found only in a likeness between the representative body and the citizens at large." In the words of Anti-Federalist Melancton Smith:

... a full and equal representation is that which possesses the same interests, feelings, opinions, and views the people Ahemselves would were they all assembled.

According to Smith, representatives "should be a true picture of the people; possess the knowledge of their circumstances and Teir wants; sympat hize in all their distresses, and be disposed to seek their interests." The only way to ensure this, in addition to the modes of election, was to provide -for a relatively large representative assembly in which there exists "a sa, ness, as to residence an d interests, between the representative and his constituents. "M

The ideal representative assembly for the Anti-Federalists was an assembly made up of the "middling" classes, primarily yeomen. Those who opposed the new Constitution saw in it the seeds of a n elitist system containing a Congress that would exhibit all the dangers accompanying aristocracy.

For the Framers of the Constitution, representation is the critical variable in providing good,responsible government. That is why they devoted so much att ention to the structure and power of Congress as they created that institution during the summer of 1787.

The most complete explanation of the Framers' approach to representation under the new Constitution is found in Federalist #10, written by James Madison posing as Publius. It is perhaps the single most important essay in American political thought. For the purposes of this analysis, however, consider Madison's understanding of representation as reflected in Federalist #10. In Federalist #10, Madi s on provides an argument for a large commercial republic, thereby undermining the concerns of -the -opponents -of the Constitution who felt a republic had to be small and primarily based on agriculture. But the success of a large republic will hinge upon r e presentation. For Publius, representation is the critical variable. And he has a very definite understanding of what representation in such a republic must look like. For Publius, representation has to do with imp@oving upon public opinion rather than cat e ring to it. As he states it, "to refine and enlarge the republic views by passing themthrough the medium of a chosen body of citizens, whose wisdom may best discern the true interests of their country and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial- considerations. When representation takes place in a large republic, it becomes possible that "the public voice, pronounced by the representatives of the people,- will,he more consonant to the public good th an if pronounced by the people themselves..."

Publius' (Madison!s) understanding of representation in a republic under the new Constitution is far more complex and subtle than the simple arithmetical notion of "one man one vote." It is an understanding of representation that looks to both the individual and institutional dimensions of representation and recognizes that both must play a role in advancing the public interest. For Madison, relying upon the election of outstanding officials isn't enough becaus e there will probably never be enough statesmen available and because even the most loyal and dedicated public servant will be tempted by all that comes with election to public office. In a similar fashion, even the most elaborate and carefully planned rep resentative institution will fail to advance the public interest if those who serve in that institution do not at least keep the national interest.in mi:dd- when making decisions.

The debate over representation wasmon. by -the supporters of the new Constit ution. It is an understanding of. representation that emphasizes competitive, democratic elections, popular accountability of elected officials, and deliberation. The focus is upon the institutions of elections. and decision-making rather than the make-up of decision-making institutions. In other words, rather than attempting to structure a system of descriptive, or passive or proportional representation, a system more akin to active representation, in the Burkean mode, was sought.

The First Transfonnation of Representation

Most scholars argue that Baker v. Cgrr_, RevngIdS v. Sims. and Wesberry v. Sanders helped to usher in a period of reform in state government that not only eradicated many of the outdated and co rrupt practices of the past, but helped lead to the professionalization of state government which has been so heralded by students of state and local government today-

4

But while these cases did indeed help to create changes and improvements in state government, they also changed, probably forever, the public's understanding of what representation in a constitutional republic such as the United States is all about. Considered together, the decisions handed down by the majority on the Supreme Court ar e at odds with much of what the. Framers of the Constitution envisioned. In Baker v. 13, the Court was asked to review a complaint from a citizen of Tennessee who was arguing that the Tennessee legislature was malapportioned. Charles W. Baker argued that t h e state had arbitrarily -apportioned seats, in the General Assembly by statute in 1901, and then had failed to reapportion'the legislative seats, even though tremendous changes in the state's population had occurred over that time. Baker argued this had l e d to a "debasemenf' of his vote - some districts in Tennessee had far fewer citizens per elected representative than his, hence:his vote was "diluted" -- and he claimed this violated the equal protection clause of the Fourteenth Amendment of the Constitut ion. Baker argued, in other words, that he was due "equal representation" in the Tennessee legislature.

Justice Brennan, in a landmark decision, and recognizing -the possible political fallout that might accompany the Court's willingness to resolve such a question, devoted most of his opinion to a defense of the justiciability of the issue. Was the, make-up of a state legislature and nature of the relationship between the voter and the state legislature an appropriate issue for the federal courts to consid er?

Brennan found that it was indeed appropriate for the Court to step in.

Ile question here is the consistency of state action with the Federal Constitution. We have no question decided, or to be decided, by a political branch of government coequal with this Court.... Nor need the appellants, in order to succeed in action, ask the Court to -enter upon policy determinations for which judicially manageable standards are lacking.

The case was remanded to the lower court. Suddenly it was entirely appropriate for the Supreme Court to pass judgment on the character of state legislatures. 'Me fact that the Court was inserting itself into the politics and organization of state government was troubling to many of the justices. But the nub of the issue seemed to b e that there didn't appear to exist any alternative. Justice Clark, in his concurring opinion, said it best.

Although I find the Tennessee apportionment statute offends the Equal Protection Clause, I would not consider intervention by this Court into so delicate a field if there were any other relief available to the people of Tennessee.

In two strident dissents, Justices Frankfurter and Harlan took issue with the majority's reasoning. According to Justice Frankfurter, the majority was "casting aside" precedent which had long recognized a distinction between issues relating to population and legislative representation and issues relating to the denial of the franchise to individuals because of race, color, religion, or gender.

Justice Harlan addressed the substance of the issue brought by plaintiff Baker. "I can find nothing in the Equal Protection Clause or elsewhere in the Federal Constitution," wrote Harlan, "which expressly or impliedly supports the view that state legislatures must be so structure d as to reflect with approximateequality the voice of every voter." Harlan recognized that the issue was not one of access to the ballot or voter discrimination: the issue was representation.

What lies at the core of this controversy is a difference of opi nion as to the function of representative government. It is surely beyond argument that those who have. the responsibility for devising a system of representation may permissibly consider that factors other than bare numbers should be taken into account. T he existence of the United States Senate is proof enough of that... In WesbeM v. Sanders14, the Court was asked to determine whether judicial scrutiny would cover not only malapportionment in state legislatures but in the Congress of the United as well. T l e lower court in Georgia had dismissed the- claim by Wesberry that population disparities among Georgia congressional districts deprived voters of "a right under the Federal Constitution to have their votes for Congressmen given the same weight as the vot e s of other Georgians." In a controversial decision, a divided Court opined that the issue -was justiciable and asserted that congressional districts should reflect a concern for equality of representation. Writing for the Court, Justice Black argued that Article I, section 2 of the Constitution -- Representatives shall be chosen..'by the People of the several States" -- meant that as nearly as possible, "one man's, vote in a congressional election is to be worth as much as anothees."

To say that a vote is worth'more in one district than in another would not only run counter to our fundamental ideas of democratic government, it would cast aside the principle of a House of Representatives elected 'by the People,'! a principle - tenaciou sly fought for and established at the Constitutional Convention.

For Justice Black, the operative principle was "one man, one vote," and while exact mathematical precision might be impossible, there was no excuse for ignoring what he considered was "o ur Constitution's plain objective of equal representation for equal numbers of people..."

Justice Harlan responded with a stinging indictment of Black's reasoning. "I had not expected to witness the day when the Supreme Court of the United States would re nder a decision which casts grave doubt on the constitutionality of the composition of the House of Representatives," thundered Harlar: Justice Harlan saw no constitutional requirement of "one man, one vote." He did not recognize a constitutional requirem ent for equality in representation in Congress. "It is whimsical to assert," he opined, "that an absolute principle of 'equal representation in the House for equal numbers of people' is 'solemnly embodied' in Article I" of the Constitution.

That same year, 1964, the Court issued its opinion in the landmark qtate legislative reapportionment case coming our of Alabama, RM Ids v. Sims". Writing for the majority, Chief Justice Earl Warren held that -'@ as a basic constitutional standard, the Equal Protection C lause requires that the seats in both houses of a bicameral state legislature must be apportioned on a population basis." Chief Justice Warren's words are memorable:

Ugislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic interests.

The Court's opinion was carefully crafted to blur the distinction between the right to vote and the right to equal representation.

It could hardly be gainsaid that a constitutional claim had been asserted by an allega tion that certain otherwise qualified voters had been entirely prohibited from voting for members of their state legislature. And, if a State should provide that the votes of citizens in one part of the State should be given two times, or five times, or 1 0 times the weight of votes of citizens in another part of the State, it could hardly be contended that the right to vote of those residing in the disfavored areas had not been effectively diluted.

It is difficult to calculate the importance of the Supreme Court's reapportionment decisions and their impact upon the theory and practice of representative government. Within three years a virtual revolution in representation had begun. Today, "one man, one vote" goes unquestioned and the Court's reapportionmen t cases are praised by lawyers and scholars and politicians because they ushered in a period of political reform in the states that has allowed for the improvement and "professionalization!' of state government.

7,

The fact is that a serious scrutiny of the Court's representation jurisprudence, as revealed in these three cases, suggests that the majority invented much of its understanding of representation while invading the sovereignty of the states. There is little in the writings of those who framed t he Constitution that suggests that representation can be reduced to a mathematical formula of "one man, one vote." As argued earlier, for the Framers, representation was a subtle and yet sophisticated idea that centered upon the way individuals elected to . public office go about advancing the interests of those who elected them. The Court's reasoning in these cases ignores this completely.

But the problems with the Court's representation jurisprudence extend beyond the justices' failure to probe the Framer s' understanding of representation in a republic. By combining a concern for. equal access to the ballot with a concern for equal representation in government, the Court seriously distorted the purposes of representative government and turned a means into an end.

First things first; it is virtually impossible to ensure equality of representation. The Framers understood this. Apparently the. Supreme- Court of the early sixties did not. Ile majority on the Court at that time felt that by guaranteeing "on 'e man,.one . vote" they were, ipso facto, guaranteeing equality of representation. But there is no nec ,essary relationship between access to the ballot and the character of representation. Tbe'character of representation is determined not by who votes but by who is elected.

For the Court, equality of representation is nothing more than a numbers issue -- equal populations in each district. But as has been shown, representation is much more than that.

The Framers of the Constitution did not seek to ensure equal repre sentation because they understood such a thing could not be ensured. They therefore established a'system of election and re-elections so that citizens might be able to seek better representation if necessary -- to elect better individuals than they had in the.past; to make their representation in the legislature "more equal" or perhaps even exceed representation from other districts. It was by combining open access to the ballot with institutional arrangements of elections and re-elections that reprosentat ive government could be ensured.

Not only did the Framers eschew a concern with equal representation, they understood that representation in a republic might indeed -include a concern for things other than people. While the rhetoric of the Court's assertio n that legislators represent "people, not trees or acres" might be pleasing, it is simple-minded. Legislators represent interests. And the Framers understood that it might indeed be. the case that some interests might be given preference over other.intere sts.

The Second Transfonnation of Representation

While the transformation in representation was initiated by the Court's reapportionment jurisprudence, there were other factors that have contributed to the transformation as well. During the sixties and seventies, the changing character of the

8

two political parties, primarily the Democratic Party, and the local, as well as national impact of civil rights legislation, particularly the Voting Rights Act, helped to ensure the transformation in representation continued.

During the tumult of the sixties, as the nation experienced simultaneously the civil rights revolution, the feminist movement, and the Viet Nam War, both the Republican and Dppiocratic parties attempted to forge coalitions to attain and ho ld national political office." Ile Republican Party, badly divided and demoralizedin the wake of Barry Goldwater's defeat in 1964, under-went a soul-searching process. Those members who had provided the organizational and electoral direction of the part h a d lost out to a more zealous and ideological faction within the party in 1964, and looked upon Goldwater's defeat as vindication for their more moderate position. During the next four years it was this more moderate and organization-oriented faction that w orked to put the party back together while seeking a less ideological and, in their view, more electable candidate for the White House. In 1968 they found their man, Richard Nixon, and regained the presidency. The Republican Party has held the White House every year since, except for the Carter years, 1976-1980.

During this time, the Democratic Party adopted a different strategy. Eager to put together the same sort of coalition within the party that had produced the Democratic majority during the New Deal, a number of reforms were introduced. The most important of these was a new approach to the selection of delegates to the national party convention. Prodded by the recommendations of its own McGovern-Frazer Commission, the Democratic Party developed an el aborate quota system for delegate selection. The purpose of the system was to ensure adequate representation at the convention for each segment of the party's traditional coalition.

By 1968, the national party was directing delegate selection so that each state's delegation had to reflect the voting constituency within that state in terms of race, gender, etc. The Democratic Party adopted a system of proportional representation with regard to selecting delegates to its national convention.

On the surface s uch an approach to delegate selection seem's both sensible and politically perceptive. By bringing into the actual party convention representatives of the electoral coalition you hope will put you in the White House-, two things might be accomplished: The members of the coalitions develop a sense of identity with the party, and the membership is sufficient enough to win the election. Unfortunately for the Democratic Party, neither of these two things came about. The 1968 convention was chaotic and its nomi nee lost in November. Since then, efforts at forging the coalition through various delegate selection reforms have met with failure as well.

There is a reason for this. Modeling delegate-selection along lines of proportional representation only serves to e mphasize thds'e things which separate the various groups represented rather than what might unite them. The Democratic Party platform has, over the years, reflected this sort of Balkanization within the party as each group has sought to ensure its interes t s are included. Rather than creating a coalition of support for the Democratic Party and its candidate, proportional- representation within the party has increased factionalism within the party, making'victory all-but-impossible and undermining party disc ipline.

9

But the Democratic Party delegate selection reforms are important for what they did accomplish as well as what they did not. For the first time a major political party in the country embraced a new and very different approach to representation and argued t hat it was not only an appropriate way to achieve a truly representative political party, but also that it was necessary. Bythe 1972 convention, the Democratic Party had established the legitimacy of proportional representation at the national political l evel.

Ile civil rights movement of the sixties and seventies also helped to shape the principle of representation in contemporary America. Amid the -numerous pieces of legislation created during that time, The Voting Rights Act of 1965 is rightly considere d the most comprehensive measure since 1870 to protect the voting rights of blacks. The law ended literacy tests, authorized the appointment of federal voting examiners to witness and certify the legitimacy of election, and established a federal vehicle t o supervise voter registration.

Gradually, however, voting rights as a civil rights issue has shifted from a concern with ballot access to a co=em with electoral outcomes. In'1980, the Supreme Court held in Mobile v. Bolden", that the Voting Rights. Act on ly prohibited states from purposefully disaftnina#ng against the voting rights of blacks. In other words, a plaintiff had to demonstrate that discrimination had been intended by the state.. Nevertheless, section 5 of the Act includes a provision stating t h at the Attorne*y General of the Unilted States may clear a change.in state voting practice only if it "does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color." In 1982, Congress amended the Act to allow plaintiffs to show discrimination solely on the effects of a voting plan. As a result, a "results test" evolved as a waX,9f determining the validity of districting plans. The Court, in T-homburgh-- v. Gingles", upheld the "results test" i n 1986.

Employing a "results test" to determine the existence of voter discrimination is tantamount to arguing for a system of proportional representation. The logic of the 11results test" is that a district composed of a majority of black voters should yi eld a black victor on election day. If that does not happen it is evidence enough of voter discrimination. In other words, the criterion for determining the equality of access to the voting booth is not how the electoral system is organized and operated b u t whether or not adequate numbers of black or other minorit@ candidatesWin election. The Congress and the Court have merged a concern with voter access and discrimination with a concern with representation, just as the Court did in the reapportionment cas es.

Ile impact of the "results test" cannot be over emphasized. It has contributed to the transformation in representation in all levels of government, leading to a system of representation by quota as opposed to the sort of representation, intended by the Framers of the Constitution. It resembles proportional representation in that the emphasis is the makeup of the elected assembly. But the criteria for determining what groups are to be represented deal exclusively with issues of ethnicity.

What has evolv ed is a system of representation that focuses on who is elected but for -the wrong reasons. The primary concern is what group or class the individual hails from as opposed to what he or she thinks about the pertinent issues. It is a focus upon the represe ntation of groups in society rather than the formation of a broader consensus

10

of the public interest. This tends to dramatize the distinctions among groups, thereby making coalition and consensus building within a legislature more difficult to achiev e. In a peculiar fashion, this approach to representation undermines representative government. In a system of representative government in which the primary focus is upon access to the ballot, competition among candidates and ideas, and institutional dev i ces and procedures aimed at translating ideas into policy, the emphasis is upon just that - ideas. It is a system of representative government which encourages discussion, dialogue, give-and-take, and debate. Once upon a time in this country, perhaps only for a short time, that is what campaigns and elections were all about. When a system of representative government focuses on who is elected the nature of representation changes. The issue for discussion has become who should be elected, but not why he sho u ld be elected. What matters is that a certain kind of person is elected. It is, in reality, representation according to what someone is as opposed to who someone is. When this happens, the quality of discourse in politics is diminished. Representative gov e rnment, in the eyes of those who created our Constitution, demands both representation and deliberation; for it is through deliberation, within the assembly and when contesting for it, that representation takes place. The -new representation by quota plac e s an emphasis solely on the results of the vote, thereby denying the importance of the events leadinj up to it and following it. Ile most recent chapters in the transformation of representation are being written with the reapportionment decisions made in t he wake of the 1990 census. Both the Democratic and Republican Parties, as well as the Bush administration, seem determined to create "minority" districts. In many states, there has been an intentional effort to create at least one "minority" district in o rder to ensure the election of a "minority representative." Indeed, the U.S. Justice Department has all-but-ordered several southern states to create such districts. Both political parties have embraced the idea. The Democratic Party advances the argument as a means of consolidating the minority support in the party, as well as increasing the number of elected minority officials. The Republican'Party supports "minority' districting as well,'finding it to be politically rewarding. Concentrating minority vot e rs in districts will produce other, more politically heterogeneous districts in which Republican candidates might stand a better chance of victory. This might indeed be the case. But those victories will exact a price. The GOP will find it difficult, if n o t impossible, to escape the image of the "white man's party" and will find it even more difficult to field minority candidates to run for office. Moreover, the tendency by both parties to employ race as a political strategy can only serve to increase raci al tension.

And the transformation in representation has recently extended to the judiciary as well. Recently the Supreme Court decide@that the proscriptions of the. Voting Rights Act extend to the election of state judges.

The developments that have he lped to alter our understanding of representation in America have occurred over a number of years. More importantly, they have occurred within the context of a society and political system that is undergoing change all the time. Yet, it is most remarkable that this revolution in representation has taken place almost without notice. When the Supreme Court handed down its decisions in the reapportionment cases controversy immediately erupted. The cases were seen as nothing short of revolutionary in that they seemed to challenge conventional understanding of representation, federalism and the role of the judiciary. A generation later, again with the help of the Court, this time assisted by Congress and both political parties, the sorts of arguments that met wi t h calumny in the sixties are advanced in support of what can only be described as a fundamental departure from republican theory and constitutional government. Nonetheless, the public seems generally uninterested in the discussion. The media seems to have accepted the concept of representation by quota, as well, reporting the drawing of district lines along racial and ethnic criteria as if it were routine.

The new understanding of representation has achieved a level of legitimacy in society that seems at once predictable and paradoxical. - That Americans would accept the idea of representation by quota is predictable, given the fact that it has evolved thro u gh law and politics, gradually. It is paradoxical, however, because the most vehement domestic policy debates in the country in recent years have been about quotas and reverse discrimination in education, employment and related areas. Yet, the introductio n of "race-based representation" in state legislatures and Congress has failed to ignite the sort of firestorm of controversy one might anticipate when the very foundations of a political system are subjected to change.