Maltz Rejoinder: Partisan Gerrymandering and Original Meaning: One More Time

The following is the latest from Earl Maltz in his debate with Ned Foley. I’ve informed them both that they’ll have to take future rounds to another blog…..

Earl Maltz:


I have a couple of brief comments on Professor Foley’s response to my last post.

  1. In asserting that I am relying on the “original expected application” version of originalism, Professor Foley misconceives the fundamental nature of my argument.  Any constitutional argument requires a two step analysis. First, one must determine the content of the legal rule that is established by the relevant constitutional language.  Second, one must apply the legal rule to the specific fact situation that is being considered.

The version of originalism that underlies my arguments focuses on the first step of the analysis.  My basic point is that, by its terms, the text of the Times, Places and Manner Clause appears to provide the state governments with plenary authority to establish district boundary lines, subject only to the explicit limitations imposed by the Constitution itself and the power of Congress to override the decisions of the state legislature.  Viewed from this perspective, gerrymanders would be immune from judicial scrutiny not because the framers thought about the problem of gerrymandering specifically, but rather because of the establishment of the plenary power rule.  Madison’s discussion of the clause is relevant because it confirms the plain meaning of the language—a meaning that would have been well-understood by all of those involved in the drafting and ratification of the Constitution as well as the public at large.

Can one conceive of bizarre state rules that would test the limits of the plenary power concept?  Sure.  But confronted with the language of the Elections Clause in 1787, any reasonable observer would have understood that the clause gave state governments the unfettered power to draw legislative districts subject only to the congressional authority to override those judgments.

  1. From an original public meaning perspective, Professor Foley’s analogy to the Dormant Commerce Clause is also unpersuasive. Essentially, he is claiming that, in the late eighteenth century, the public generally would have believed that, by specifically providing Congress with the authority to override the decisions of a state government made pursuant to a power granted by the Constitution itself, the Constitution also implicitly gave the courts authority to override those same decisions.  Such a claim is simply implausible.

But in any event, far from supporting Professor Foley’s position, Ex Parte Siebold implicitly rejects the claim that the courts have the authority to override state election law decisions without statutory authorization.  The Siebold Court did mention the cases in which state laws had been held to run afoul of the Dormant Commerce Clause.  But throughout the opinion, the Court explicitly analogized Elections Clause cases to those in which the Court had concluded that state regulations of commerce were not unconstitutional, and emphasized the concurrent authority of the states to regulate federal elections in the absence of congressional action.  Thus, for example, the opinion asserted that “[t]he State may make regulations on the subject; Congress may make regulations on the same subject, or may alter or add to those already made. The paramount character of those made by Congress has the effect to supersede those made by the State, so far as the two are inconsistent, and no farther.”

The bottom line is that original meaning does not provide any solace to those who would argue that the use of partisan gerrymanders should be found unconstitutional.


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