The Gerrymander and the Constitution: Two Avenues of Analysis and the Quest for a Durable Precedent

36 Pages Posted: 12 Jul 2017  

Edward B. Foley

Ohio State University (OSU) - Michael E. Moritz College of Law

Date Written: July 10, 2017

Abstract

It has been notoriously difficult for the U.S. Supreme Court to develop a judicially manageable — and publicly comprehensible — standard for adjudicating partisan gerrymandering claims, a standard comparable in this respect to the extraordinarily successful “one-person, one-vote” principle articulated in the Reapportionment Revolution of the 1960s. This difficulty persists because the quest has been for a gerrymandering standard that is universalistic in the same way that “one-person, one-vote” is: derived from abstract ideas of political theory, like the equal right of citizens to participate in electoral politics. But other domains of constitutional law employ particularistic modes of reasoning in sharp contrast to the universalism of the “one-person, one-vote” principle; and particularism can provide a judicially manageable standard for partisan gerrymandering claims, doing so by making the original Gerrymander — the one provided the name for this category of pernicious partisanship — a fixed historical benchmark by which to judge the distortion of legislative districts.

This particularistic reasoning should be persuasive to Justice Anthony Kennedy, especially if rooted in the First Amendment (home to other well-known examples of particularistic analysis), and if also combined with a cogent explanation why the First Amendment right must remain “judicially under-enforced” relative to its potential scope on universalistic grounds, because of the barrier imposed by the political question doctrine’s need for a judicially manageable standard. (Particularism, in other words, defines not necessarily the full First Amendment right from a theoretical perspective, but only the judicially enforceable portion of it.) Even more important than persuading Justice Kennedy, however, is convincing a Supreme Court controlled by conservatives — after Kennedy has been replaced by another like Justices Thomas, Alito, or Gorsuch — not to overrule an opinion in which Justice Kennedy has identified a judicially manageable standard for invalidating partisan gerrymanders as unconstitutional. On this crucial point, particularism has distinct advantages to universalism, including facilitating the possibility that the Kennedy-authored precedent quickly becomes imbedded in the nation’s political culture, because the public easily understands (and embraces) a precedent that renders unconstitutional a district as disfigured as the original Gerrymander. A precedent that becomes as integral element of America’s public self-understanding in this way is one that conservatives on the Court would have difficulty overruling and, indeed, little interest in repudiating insofar as it is historically grounded and limited by the kind of particularistic reasoning that conservatives consider acceptable.

Keywords: Redistricting, Vieth, Justice Kennedy, Gerrymandering, Precedent, Stare Decisis, Supreme Court, Reynolds, Universalistic, Particularistic, Partisan, Partisanship, Due Process, First Amendment, Elections

Suggested Citation

Foley, Edward B., The Gerrymander and the Constitution: Two Avenues of Analysis and the Quest for a Durable Precedent (July 10, 2017). Ohio State Public Law Working Paper No. 401. Available at SSRN: https://ssrn.com/abstract=2999738

Edward B. Foley (Contact Author)

Ohio State University (OSU) - Michael E. Moritz College of Law ( email )

55 West 12th Avenue
Columbus, OH 43210
United States
614-292-4288 (Phone)
614-292-2035 (Fax)

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