This is the time of year when every day seems to bring a new outrage out of Albany.

Governor Andrew Cuomo wants to shift more state-mandated Medicaid expenses to counties; he intends to rob local municipalities of revenue from casinos in their communities; he seeks to burden small businesses, already struggling with high taxes and costly regulations, with mandatory guaranteed sick leave.

Last year, Cuomo and his downstate progressive cronies used the budget to saddle Upstate communities with bail reform and new discovery rules that are endangering lives and driving up costs for local governments.

One-party rule is breeding resentment in rural New York.

But it doesn’t have to be that way. And it wouldn’t be if not for a landmark Supreme Court decision, Reynolds v. Sims.

The 1964 Warren court ruling attempted to address clear inequities in state legislatures. There were states, such as Georgia and Tennessee, that had seriously unequal legislative districts.  

In the wake of Reynolds, New York abandoned its districting scheme in both its legislative houses. Prior to the ruling, its 57 senatorial districts consisted of either one or more entire counties or contiguous areas within single counties. 

Reynolds, however, tipped the balance of power in New York’s upper chamber toward the cities, expanded government along progressive lines, including with a luxurious Medicaid program, which encumbered county governments with much of the expense. This was particularly ruinous for poorer rural counties.

Earl Warren’s shortsighted ruling failed to recognize that urban and rural voters are often quite different in their outlooks, their priorities, even their grievances. By denying rural voters a voice in their state governments, Warren eliminated the imperative for consensus and compromise in states such as New York.

For example, in New York, the SAFE Act (Secure Ammunition and Firearms Enforcement Act) was passed in 2013 over the objections of rural voters.

The response from Albany? “So? Majority rules, dude.”

This majoritarian attitude, which is really just arrogance, was not how visionaries in the original 13 states looked at their societies, nor is it what the framers set forth in the U.S. Constitution.

Warren based his decision on a pair of faulty premises:

• First, that the federal system of two senators per state could not be extended by analogy to the states;
• Second, that the 14th Amendment promised citizens a “one man, one vote” form of government.

To the first objection, Warren wrote, “And the Founding Fathers clearly had no intention of establishing a pattern or model for the apportionment of seats in state legislatures….”

Warren clearly had not read Gordon S. Wood’s book, Creation of the American Republic, which lays out how the new nation created republican governments with checks and balances and mixed representation. 

In the early days, the 13 former colonies saw themselves not as a united country, but as a confederated collection of like-minded independent sovereign states. The majority of delegates in these states recognized natural rights and individual liberty. To safeguard that liberty, they sought to protect minority factions and individuals from the tyranny of majorities. 

In the footnotes of Reynolds v. Sims, Warren offers up a historically unsupported proposition that Thomas Jefferson favored proportional representation in a state’s upper house.

Warren quotes Jefferson, “Equal representation is so fundamental a principle in a true republic that no prejudice can justify its violation because the prejudices themselves cannot be justified.”

This interpretation is the opposite of what Jefferson communicated to William King in a letter on Maine’s new constitution. Jefferson complained to King that the cities of Portland and Wells had three representatives apiece while other jurisdictions retained only one. To Jefferson, this was unequal representation at the expense of rural residents.

The agrarian founder said often that “great cities are great sores.” New York City may not be the blot on the Empire State that some wags contend, but the values of its residents are certainly not shared by those of us who enjoy vistas of trees and pastures and open spaces to enliven our sense of sovereignty.

Jefferson played no part in drafting the federal constitution. But he did help out with Virginia’s constitution, of which he wrote multiple drafts, all dictating a mixed and balanced government that included a bicameral legislature, including a smaller upper house chosen by means other than popular vote.

Jefferson believed that a government that did not represent all interests of society could fall prey to tyrannical forces. The purpose of a smaller, more deliberative upper chamber was to check the majoritarian impulses of the lower house with its more democratic spirit.

In Pennsylvania, Whigs believed that a single chamber would be hazardous to liberty, which, as Benjamin Rush noted during the debates, is dangerous because it is unconstrained.

The same can be said of two chambers whose members are drawn by the same means of election, especially in an era of unchecked party power.

It was all these state-level debates that laid the foundation for the Constitutional Convention in 1787. So when Warren writes in Reynolds that an analogy between state houses and the federal government is an “after-the-fact rationalization” he is, as a matter of history, wrong. 

As for Warren’s opinion that the 14th Amendment guarantees all citizens equal voting rights, the Court’s lone conservative, John Marshall Harlan, dunked on his ahistorical rationalization and lack of logical consistency.

Harlan called out Warren for his “political ideology.” The progressive court’s opinion, he said, was an attempt to impose majoritarianism on sovereign states, states that were promised in Article IV, Section 4 of the U.S. Constitution a “republican form of government.” 

The Equal Protection Clause of the 14th Amendment was never intended to inhibit states from choosing their own self-governing methods for selecting members of their legislatures, as Harlan pointed out. 

He admonished Warren and his co-conspirators for not reading the 14th Amendment as a single text and for not researching its legislative history. In fact, the 14th Amendment was ratified by states with mixed and balanced legislatures. 

“Can it be seriously contended that the legislatures of these States,” Harlan wrote, “would have ratified an amendment which might render their own States’ constitutions unconstitutional?”

Further, it was not the 14th Amendment that enshrined the franchise for those to whom it had been previously been denied. Rather, it was the 15th Amendment that extended suffrage to anyone regardless of “race, color, or previous condition of servitude.”

One of Warren’s oft-quoted, poetic phrases from Reynold is also flawed. Warren wrote, “people, not land or trees or pastures, vote.”

That’s true on its face but deceptive in its meaning. People in communities vote, communities of like interests and common causes, communities of varying sizes and differing goals. In a republican form of government, those communities of competing interests have a right to be heard, and where their views diverge, they have the right to act as checks and balances against those who would do harm to their liberty. 

Big-government policies in the state of New York have helped deplete rural communities. In most of the six decades since Reynolds, New York’s rural counties have had marginal representation in the legislature. 

We’ve now reached an era in New York history when rural counties are too emaciated to retain any meaningful representation.

As anyone who has driven through Upstate knows, lawn signs and bumper stickers denouncing Cuomo abound. Some of them are quite profane. The resentment began with passage of the SAFE Act and each new abuse of liberty or threat to security—the Farm Labor Bill, bail reform, multiple unfunded mandates on county governments, new regulations on small businesses—have made people angry.

New York is on an unsustainable path politically and economically. There seems to be only one clear remedy—for someone with the resources and cause to take a case to court so that Reynolds v. Sims can be properly overturned. With New York’s right to a mixed and balanced government restored, we could then establish an upper chamber that’s ideally comprised of one senator per county, selected by county legislatures. This would provide fair representation to rural counties and also alleviate, to paraphrase Jefferson, the need for electioneering by senators. There would be no more fundraising and far less concern about corruption.

The time to act is now, while we still have a conservative-leaning Supreme Court.

Howard Owens is publisher of The Batavian in Batavia, NY. He’s on Twitter @howardowens.