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Earl Maltz on Originalism and Partisan Gerrymandering
Michael Ramsey

At Election Law Blog, Earl Maltz (Rutgers), guest-blogging, responds to Ned Foley (see here) on partisan gerrymandering and originalism: 

In a recent series of blog posts drawn from a forthcoming article in the Georgia Law Review, Professor Edward B. Foley argues that a successful constitutional challenge to extreme political gerrymanders of congressional districts can be based on the original meaning of the Constitution.  Professor Foley contends that, even in the absence of federal statutes regulating such gerrymanders, by analogy to the dormant Commerce Clause, limitations on the actions of state governments can be inferred Article I, section four, which grants Congress the authority to establish the rules under which members of the House of Representatives are chosen.  Second, relying on what he describes as “structural originalism,” Professor Foley argues that “partisan gerrymandering of congressional districts contravenes Article I of the original Constitution insofar as those gerrymanders undermine the responsiveness to the will of the ‘People’ that biennial elections to the federal House of Representatives originally were designed to effectuate.”  However, despite a valiant effort, Professor Foley ultimately fails to demonstrate that the use of partisan gerrymanders is barred by the original meaning.

In making his argument, Professor Foley makes only passing reference to the most directly relevant constitutional provision—the part of Article I, section four, which provides that “[t]he Times, Places and Manner of holding Elections for….Representatives, shall be prescribed in each State by the Legislature thereof,” subject only to the proviso that “Congress may at any time by Law make or alter such regulations.”  The existence of this language undermines Professor Foley’s argument on a number of different levels. ...

And from the core of the argument:

... [N]ot only does the language of Article I, section four undermine the constitutional challenge to political gerrymanders on its face, but the most detailed discussion of this language at the Constitutional Convention is flatly inconsistent with Professor Foley’s argument.  At the convention, James Madison provided a detailed description of the extent of state power to regulate the time, place and manner of congressional elections after Charles Pinckney and John Rutledge of South Carolina moved to eliminate the power of Congress to alter those regulations.  In opposing the motion, Madison first observed that times, places and manner “were words of great latitude” and that “it was impossible to foresee all the abuses that might be made of [this] discretionary power.”  Moreover, Madison explicitly envisioned the possibility that “the inequality of the representation in the legislatures of particular states would produce a like inequality in their representation in the national legislature, as it was presumable that the counties having the power in the former case would secure it to themselves in the latter.”  For this reason, he argued, it was necessary for Congress to have the power to override state regulations that it deemed inappropriate.

The import of Madison’s analysis could hardly be clearer.  In his view, the Time, Place and Manner Clause by its terms vested the state governments with the authority to adopt whatever systems they choose for the selection of representatives (subject, of course to the specific requirements of Article I).  He conceded that, at times, states might abuse this authority.  However, Madison implicitly indicated that the power to remedy the problem would lie only with Congress. ...

Professor Foley has a further response here, which emphasizes methodological differences: 

But that assumption [that originalism does not support an argument against partisan gerrymanders] is based on a faulty conception of originalism, one rooted in the idea that the law of a constitutional clause is to be discerned in how its authors originally expected the clause to operate.  Called “original expectation application,” this version of originalism has been largely discredited by scholars and jurists alike (including Justice Scalia) and replaced with “original public meaning”—the law of a constitutional clause is what the public as a whole understood those words to embody at the time of ratification.  This distinction is crucial.  It is what justifies decisions like Brown v. Board of Education and Loving v. Viriginia.  Did the authors of the Fourteenth Amendment expect that amendment to outlaw school segregation or laws prohibiting interracial marriage?  Of course not.  But the original public meaning of the phrase “equal protection” embodied a kind of anti-caste principle that, when understood for what it was, necessarily invalidated race-based discriminations regarding education and marriage.

Professor Maltz’s claim that originalism does not generate the conclusion that congressional gerrymanders are unconstitutional is mired in the since-repudiated “original expected applications” version of originalism.  His main piece of evidence is what delegates to the Constitutional Convention said to each other behind closed doors during the summer of 1787 in Philadelphia.  Not only do those particular passages fail to carry the implications that Professor Maltz ascribes to them—the fact that states might abuse the power to regulate the “time, places, and manner” of congressional elections, as Madison feared they would, hardly entails the conclusion that no such abuse could be too extreme to be unconstitutional in Madison’s eyes—but even if that’s an accurate understanding of what Madison himself thought on the particular question, it would not fix the “original public meaning” of the provisions that were actually ratified.  Madison’s own notes on the convention were not published until decades later, in keeping with the promise to keep the convention’s discussions secret.

Without taking sides on the ultimate question, it seems to me that a difficulty with Professor Foley's methodological argument is that he is not actually relying on the original public meaning of a particular clause (as he explains in his earlier posts).  Instead, he is relying on a structural implication.  So he is not really doing what he says originalists do with Brown and Loving -- that is, interpreting words to have their original meaning despite their framers' expectations.  He is taking that approach a step further to find structural implications that the framers (so far as we know) did not identify.