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03/31/2016

Earl Maltz: Originalism, Democratic Theory and the Reapportionment Cases

Earl M. Maltz (Rutgers Law School) has posted Inconvenient Truth: Originalism, Democratic Theory and the Reapportionment Cases (Mississippi Law Journal, forthcoming) on SSRN.  Here is the 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.

An interesting and important article.  I agree that the result in Reynolds  appears inconsistent with the original meaning, and that this points up a serious flaw in the original constitution.  I think that "originalists [who] characterize themselves as champions of democracy" are probably not fully considering the issues.