The following is the fourth in a series of guest posts on Benisek v. Lamone by Ohio State’s Ned Foley.
Edward B. Foley
This blog essay is the fourth in a series derived from a contribution to a University of Georgia Law Review symposium, building upon the first, second, and third installments.
In the previous post in this series, I explained how an originalist approach to constitutional interpretation leads to the conclusion 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.
In this post, I want to develop this originalist argument some more, by drawing a distinction between two different types of originalist methodologies. Since the constitutional jurisprudence of redistricting law has developed over the last half-century from largely non-originalist premises (as I explained in the previous post), with the foundational precedent being Reynolds v. Sims, it is understandable if distinctions among different originalist methodologies are less familiar to redistricting law specialists than they are to those who focus on other domains of constitutional litigation. But there has been an outpouring of theoretical scholarship in recent years over the nature of originalism, and insofar as the Supreme Court has becoming increasingly guided by originalist principles – and will likely become even more so if President Trump appoints one or two more Justices to the Court in the mold of Antonin Scalia or Neil Gorsuch, as he has promised to do – it behooves redistricting law specialists to examine the contemporary nature of originalism and its potential applicability to their particular terrain.
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 was developed to deal with the problem of ambiguous or otherwise indeterminate language employed in the Constitution. What does “cruel and unusual punishment” mean? Or “equal protection”? Linguistic originalism holds that such words or phrases employed in the Constitution mean, for the purpose of operating as law because of their status as text in the Constitution, exactly the same as what they meant – according to the original public understanding of that language – at the time that language was adopted as part of the Constitution. “Equal protection” thus means today the same as what it meant publicly in 1868 when the Fourteenth Amendment was added to the Constitution. Linguistic originalism allows that expectations concerning the implications of that original meaning, as applied to particular circumstances (like segregated schools), can change in order to correct misunderstandings of what the original public meaning properly entails with respect to particular applications. But linguistic originalism denies that the actual language of the Constitution itself can acquire a new and different meaning, as law, from its original public meaning. “Equal protection,” in other words, cannot be a different concept – as a governing constraint upon the conduct of states and their officials – from what that concept was when included in the Constitution as part of the Fourteenth Amendment.
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).
Although structural originalism has been less prominent in scholarly discussions than linguistic originalism, it is no less genuinely originalist, and it has featured decisively in many important cases. The key feature of originalism – what distinguishes it from its intellectual opponent, often called “living constitutionalism” – is that the law established by the Constitution does not change except by duly authorized amendments pursuant to the Constitution itself. Termed by scholars as the “fixation thesis,” the point is that the legally binding attributes of the Constitution are fixed at the time they are adopted as law, and they do not change through judicial interpretation of them or as a result of any other interpretive process, but only by the fixation of newly adopted provisions.
An especially clear and prominent example of structural originalism as the determinative element of the Supreme Court’s reasoning is Alden v. Maine, where the Court ruled that the doctrine of state sovereign immunity applies to claims based on federal laws enacted pursuant to congressional powers enumerated in Article I of the Constitution—and applies even if those claims are raised in state rather than federal court. The Court based its decision not on any linguistic analysis of contestable words in the Constitution’s text, but instead on the proposition that the fundamental structure of federalism entailed that the states entered the Union with their core sovereign immunity intact. The Court clearly viewed this structural reasoning as originalist in nature. Indeed, the Court explicitly declared that it was deciding the issue according to the “original understanding of the Constitution” and proceeded to assert that retention of state sovereign immunity was such an ingrained assumption of the original Constitution Convention “that no one conceived that it would be altered by the new Constitution.” This proposition is hardly an exercise in “living constitutionalism”; it is not grafting onto the Constitution a principle that was not there to begin with, or otherwise altering the law that the adoption of the Constitution established. Instead, it is simply a determination that part of that original law, by virtue of the basic structure of sovereign states entering the Union, encompassed a retention of sovereign immunity. As the Court itself summarized in the conclusion to its opinion: “We seek to discover . . . only what the Framers and those who ratified the Constitution sought to accomplish when they created a federal system. We appeal to no higher authority than the Charter which they wrote and adopted.”
Similar to Alden v. Maine and more directly relevant to election law, and thus to the pending Benisek case concerning congressional gerrymandering, is Shelby County, the decision that invalidated the formula that Congress had failed to update for determining which states were subject to the requirement of the Voting Rights Act that they get preapproval from the federal government any changes they make to their voting rules and procedures. The Court rested its Shelby County decision not on any linguistic analysis of constitutional text, but instead on the structural proposition that states are equals in their membership in the Union—and that the outdated coverage formula, which differentiated arbitrarily among the states with respect to this preapproval obligation, improperly violated the equality of the states. Recognizing this structural principle of state equality, like the affirmation of state sovereign immunity in Alden v. Maine, was not an exercise in “living constitutionalism”; rather, the fundamental equality of the states was always a part of the original Constitution from the very beginning. For the Court to uphold this equality of the states was thus an originalist decision, albeit of the structural rather than linguistic variety.
Shelby County is important because it illustrates in the specific context of an election law case the originalist methodology that the Court should apply in Benisek, the pending case concerning congressional gerrymandering. To be sure, gerrymandering does not implicate the same structural principle that was involved in Shelby County; but it most assuredly involves a structural principle that was just as much a part of the original Constitution as the equality of the states. That principle is core concept of popular sovereignty, reflected in the first three words of the Constitution “We the People,” whereby the government must be responsive to the electoral will of the “People” expressed through their votes at regularly scheduled intervals. The original Constitution imbedded this popular sovereignty principle in an overall system that also included the structural principles of federalism and separation of powers. But there can be no doubt that, in adopting the Constitution, the Founders incorporated a component of popular sovereignty as an integral element of the total design.
The issue of gerrymandering under the original Constitution is not a linguistic one. It does not turn on a contested meaning of the word “People” as employed either in the Constitution’s preamble or in the specific provision of Article I that the federal “House of Representatives shall be composed of Members chosen every second Year by the People of the several States.” Instead, the issue is a structural one: is gerrymandering inconsistent with the principle of popular sovereignty that underlies the provision that the federal House of Representatives is to be chosen biennially to reflect the changing will of the electorate? For reasons discussed previously, the answer is that, yes, extreme gerrymandering of the kind that systematically frustrates the ability of changing voter preferences to unseat incumbents does contravene this fundamental principle of popular sovereignty (and statistics can distinguish these extreme gerrymanders from districts based on valid geographical considerations).
Given this structural conclusion, the same originalist methodology that the Court employed in Shelby County dictates invalidation of extreme congressional gerrymanders. This conclusion is not the grafting onto the Constitution a new principle that was not there at the beginning. Rather, it is the appropriately originalist enforcement of the structural principle that has been imbedded in the Constitution from the start. Just as the original structural principle of equality among the states required invalidation in Shelby County of the statutory coverage formula inconsistent with that structural principle, so too the original structural principle of popular sovereignty applicable to House of Representatives requires invalidation of statutory gerrymanders inconsistent with this other structural principle.
Thus, a principled originalist must see that Benisek calls for application of the same structural reasoning at work in Shelby County.