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Ned Foley on Originalism and Partisan Gerrymanders
Michael Ramsey

At the Election Law Blog, Ned Foley (Ohio State) has a series of guest posts on Benisek v. Lamone, the Maryland gerrymandering case pending at the Supreme Court.  The first two posts provide an overview of the case, while the third and fourth present a novel originalist argument for invalidating the gerrymander.

Benisek, Congressional Gerrymanders & the Elections Clause (post #1)

Constitutional Preservation, the Marbury Duty & Congressional Gerrymanders (post #2) [arguing that it's not a political question]

Originalism and Election Law (or, The Difference between Reynolds and Benisek) (post #3)

Shelby County, Structural Originalism, and Congressional Gerrymanders (post #4)

The third post begins:

Election Law as a distinct field of study was founded on decidedly “non-originalist” premises.  The seminal case, after Baker v. Carr set aside the “political question doctrine” as an obstacle to the judicial entry to this field, was Reynolds v. Sims.  Decided in 1964, during the heyday of Warren Court activism, Reynolds declared that the Equal Protection Clause of the Fourteenth Amendment required equally populated districts for a state’s legislative chamber.  The Warren Court made no effort to derive this “one-person, one-vote” requirement from the original meaning of the Equal Protection Clause.

Indeed, the Court obviously could not do so, since the Fourteenth Amendment (in its second section) explicitly acknowledged that states were entitled to deny equal voting rights to their citizens, the only consequence being that states would lose strength in their share of congressional seats nationwide to the extent that they denied voting rights to adult males 21 or older (except for reason of a felony or participation in the Civil War on the side of Confederacy).  Moreover, it was necessary to add the Fifteenth Amendment in order to protect the right to vote from race-based discrimination.  The Fifteenth Amendment, however, was mere surplusage if the Fourteenth already guaranteed each adult citizen an equal right to vote.  In his Reynolds dissent, Justice John Marshall Harlan (one of the jurisprudential giants in the Court’s history) excoriated the majority opinion for abandoning all pretense of fidelity to the Constitution’s actual language and original meaning.


...Moreover, given that so much energy for more than thirty years has been devoted to deriving a successful anti-gerrymandering claim from the flagrantly non-originalist Reynolds, it is understandable that one might assume that it is impossible to mount a genuinely originalist challenge to partisan gerrymandering.  That assumption, however, is incorrect.  If we bypass Reynolds altogether, and examine the issue from a fresh perspective, we can see that congressional gerrymandering in particular—the type at issue in the pending Benisek case from Maryland—is constitutionally infirm according to a properly originalist interpretation of Article I and its role in the overall design of the original Constitution.

Here is the core of the argument:

Focusing on the originalist antipathy towards faction properly distinguishes the constitutional condemnation of partisan gerrymandering from the anti-originalist imposition of “one-person, one-vote” in Reynolds.  There is nothing in the original Constitution, or the Fourteenth Amendment, that required states to district their own legislatures according to a principle of equal population.  The Framers knew that there could be valid principles of legislative apportionment, based on legitimate geographical considerations, for why a state’s own legislative districts might deviate from strict population equality.  (A desire for balance between downstate and upstate in New York, for example, might be one such legitimate consideration, or between the tidewater and piedmont regions of Virginia.)  But if the federal Congress became captured by the mere desire of a faction to perpetuate itself in power, without regard to valid geographical factors, that circumstance would be directly antithetical to what the Framers were aiming to accomplish with their constitutional design, including specifically the biennial nature of elections to the federal House of Representatives as a key component of that design.

And this key methodological point:

The fact that gerrymanders occurred almost immediately after adoption of the Constitution, before the proverbial ink was dry, in no way undercuts this originalist conclusion.  In his Vieth plurality, Justice Scalia seemed to think that partisan gerrymanders could not be unconstitutional given their existence going all the way back to the time of the Founding (and, indeed, in the colonial period before).  But as Justice Scalia himself recognized in many other writings, the proper methodology of originalism—what he and others have technically called the “original public meaning” of the Constitution—does not work this way.  Often provisions are included in a Constitution precisely because its authors are acutely aware that ordinary politicians, succumbing to the inevitable pressures of ordinary politics, will become agents of a self-serving faction rather than of the general public interest, and thus there needs to be a constitutional constraint upon such ordinary political behavior.  Consequently, the mere fact that this kind of improper political conduct begins to occur almost immediately after adoption of the Constitution is not an indication that the conduct is constitutionally permissible.  On the contrary, it simply underscores the accurate assessment of the need for this constitutional constraint.

And an even more important general point from the fourth post:

This brief blog essay is hardly the place to outline all the variations among contemporary versions of originalism.  There is just one basic distinction, between two different forms of originalism, that is important to identify for the purpose of evaluating the applicability of originalism to the issue of congressional gerrymandering.  That distinction is between what we may called “linguistic originalism,” on the one hand, and “structural originalism,” on the other.

Linguistic originalism concerns the meaning of words, or phrases (or even complete clauses), in the text of the Constitution. ...

Linguistic originalism is an important principle of constitutional interpretation, and it comes into play in many cases that require the Court’s resolution.  For example, does the original public meaning of “equal protection” invalidate state laws that ban interracial marriage? Or gay marriage? Does the original public meaning of “due process” encompass a substantive right to personal autonomy of the kind that includes the right of a woman to terminate a pregnancy?

But linguistic originalism does not answer all constitutional questions.  For some issues, it is necessary to invoke structural originalism, which is the principle that the original structure of the Constitution – including its features of federalism and separation of powers – are part of the original law that the Constitution establishes for the United States and, as “the supreme law of the land,” have binding implications and applications in particular contexts.  For example, it is structural originalism – not linguistic originalism – that yields the conclusion in Printz v. United States that Congress, even when acting within the scope of its Commerce Clause power, may not impose obligations on state and local officials that amount to a “commandeering” of the officers of a separate sovereign state.  Similarly, it is structural originalism – not linguistic originalism – that determines that a president may not order the seizure of the nation’s steel industry in defiance of congressional refusal to grant the president that authority (as the Court famously ruled in the Steel Seizure Case).

This is an extremely important point that has been lost on commentators who have criticized Justice Scalia for being nonoriginalist in cases like Printz (and, I would add, in standing and Eleventh Amendment cases).  "Structural originalism" exactly captures Scalia's approach in those cases.  (I wish I had come up with that phrase).

Whether it's an appropriate form of originalism depends in turn on one's attachment to textualism.  Textualists are likely to have concerns about it because (as Professor Foley says) it's disconnected from the particular words and clauses of the text.  As I've argued, Scalia's use of what Professor Foley calls "structural originalism" doesn't show he was a nonoriginalist, but it does show that he was, to some extent, not fully a textualist.

(As an aside, I can't help adding that, contrary to Professor Foley, I don't see the Steel Seizure case as an example of "structural originalism"; I think its outcome follows directly from the text, specifically the grant of "[a]ll legislative Powers" to Congress and the lack of any relevant grant of power to the President to alter domestic rights, roughly as Justice Black said.  See Chapter 3 of The Constitution's Text in Foreign Affairs).

Professor Foley's blog posts are based on this article forthcoming in the Georgia Law Review