« Peter Markowitz: The Power of State Citizenship
Michael Ramsey
| Main | Randy Barnett on the Origination Clause Litigation
Michael Ramsey
»

10/14/2014

Gerard Magliocca on Arizona Redistricting
Michael Ramsey

Gerard Magliocca has two great posts on the Arizona State Legislature case at Concurring Opinions, here and here.  But, he ends up persuading me the opposite of what he intends (at least in the first post).  After laying out the competing arguments, he comes down on the side of the lower court, in favor of the constitutionality of the redistricting commission:

Why do I think that [this] interpretation is better?  Mainly on structural grounds. The remedy for partisan gerrymandering cannot be placed within the authority of the institution that does the gerrymandering.   In practice, there is no judicial review of partisan gerrymandering claims and Congress will not act.  Thus, the only plausible remedy is through an initiative or referendum in states that permit them.

Yes, if one were drafting a new Constitution, or a constitutional amendment, this would be a good argument.    But calling it a "structural" argument should not disguise its character as purely an argument from policy.  So, as is often true, we can decide the case based on what we think is the best policy, or we can decide the case based on the language of the Constitution.

Notably, in his second post (which may show some retreat from his first), Professor Magliocca appears to assume that in other instances where the Constitution gives a power to state "Legislature[s]," the state could not amend its Constitution by popular initiative to give the power entirely to another entity.  I find this to be very powerful evidence that when the framers wrote "Legislature" they meant, well, the legislature.  (Professor Magliocca has a response, but it seems strained to me).