Jim Gardner has posted this draft on SSRN (forthcoming, University of Chicago Law Forum). Here is the abstract:
It has long been assumed in large, modern, democratic states that the successful practice of democratic politics requires some kind of internal division of the polity into subunits. In the United States, the appropriate methods and justifications for doing so have long been deeply and inconclusively contested. One reason for the intractability of these disputes is that American practices of political self-division are rooted in, and have been largely carried forward from, premodern practices that rested originally on overtly illiberal assumptions and justifications that are difficult or impossible to square with contemporary commitments to philosophical liberalism.
The possibility of sorting things out in a rational way – long the object of legal and political science scholarship in the field – has recently been greatly complicated by an unexpected resurgence of various forms of illiberalism, especially populist authoritarianism, a conception of popular self-governance that rejects liberal understandings of democratic processes and politics. This new political alignment is especially complicating because liberals and illiberals disagree profoundly about the nature of the body politic, its susceptibility to division, and the significance and proper goals of such division.
This article traces the evolution of American practices of political self-division from premodernity through the present, explores how present political trends affect longstanding disputes over practices of legislative districting, and concludes with a brief examination of some possible ways of establishing a workable modus vivendi.