Inconvenient Truth: Originalism, Democratic Theory and the Reapportionment Cases

28 Pages Posted: 24 Mar 2016

See all articles by Earl M. Maltz

Earl M. Maltz

Rutgers, The State University of New Jersey - Rutgers Law School

Date Written: March 23, 2016

Abstract

Critics of originalist theory often argue that in practice, a constitutional jurisprudence based on original meaning would generate unacceptable results. Most often, those who make such claims focus on the decision in Brown v. Board of Education, in which the Court held that state governments could not constitutionally maintain public schools that were segregated by race. In addition, nonoriginalists often cite cases dealing with issues such as gay rights and sex discrimination as examples of socially desirable decisions that could not be justified in originalist terms.

By contrast, Reynolds v. Sims -- the case in which the Court held that representation in state legislatures must be apportioned according to the principle of one person, one vote -- is rarely even mentioned in the debate over the viability of originalism. The idea that representation should be based on population is fundamental to any plausible conception of democratic government. However, although originalists often characterize themselves as champions of democracy, the decision in Reynolds cannot be squared with originalist theory. This article will demonstrate that the reapportionment decisions are inconsistent with the original meaning of the Constitution and discuss the significance of this conclusion for the ongoing debate over constitutional theory more generally.

Keywords: constitutional law, constitutional theory

Suggested Citation

Maltz, Earl Michael, Inconvenient Truth: Originalism, Democratic Theory and the Reapportionment Cases (March 23, 2016). Mississippi Law Journal, Forthcoming, Available at SSRN: https://ssrn.com/abstract=2753586

Earl Michael Maltz (Contact Author)

Rutgers, The State University of New Jersey - Rutgers Law School ( email )

Newark, NJ
United States

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