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From Baker v. Carr to Bush v. Gore, and Back

22 Pages Posted: 9 Jan 2012 Last revised: 7 Nov 2013

Nelson Lund

George Mason University School of Law

Date Written: January 8, 2012

Abstract

This essay advances three propositions. First, Baker v. Carr and its early one person, one vote progeny were wrongly decided. Second, in light of the case law generated by these cases, Bush v. Gore was correctly decided. Third, even without Baker and its progeny, the decision in Bush v. Gore would still have been legally correct.

Justice Harlan proved the first proposition in his dissenting opinions in the early cases, and the majority never even made an effort to respond to his arguments and evidence. I have established the second proposition in a series of articles that have received a similar form of silent treatment from the legal academy. I believe that the third proposition is novel, and that everyone should agree with it even if they disagree about the first two.

Keywords: Alexander Bickel, Carolene Products, Earl Warren, equal protection, federal courts, Felix Frankfurter, Fourteenth Amendment, Gray, guarantee clause, inherent limits, John, judicial power, passive virtues, Sanders, Stephen Breyer, subject-matter clause, United States Supreme Court, William Douglas

JEL Classification: D72, J71, J78

Suggested Citation

Lund, Nelson, From Baker v. Carr to Bush v. Gore, and Back (January 8, 2012). Case Western Reserve Law Review, Vol. 62, No. 4, pp. 947-967, 2012; George Mason Law & Economics Research Paper No. 12-01. Available at SSRN: https://ssrn.com/abstract=1981758 or http://dx.doi.org/10.2139/ssrn.1981758

Nelson Robert Lund (Contact Author)

George Mason University School of Law ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States
703-993-8045 (Phone)

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