Prominent legal scholar Earl Maltz has an important new article arguing thatReynolds v. Sims (1965) and other Supreme Court decisions requiring state governments to follow the “one person, one vote” rule for apportioning legislative districts cannot be squared with the original meaning of the Constitution. Maltz also contends that this conclusion greatly weakens the case for originalism, perhaps to the point of undermining it completely. He emphasizes that an originalist judge faced with unequally apportioned state legislatures where some voters have much greater representation than others, will be “powerless to act against regimes that are structured in a manner that is completely inconsistent with the most fundamental tenets of democracy.” These issues are particularly significant, as the Supreme Court is now considering a case about the meaning of the “one person, one vote” principle, and what it entails.
Maltz makes a strong case that the one person, one vote cases are incompatible with the original meaning. But his argument that this is a major strike against originalism is unpersuasive. Like Maltz, I agree that originalism should be judged at least in large part on consequentialist grounds: based on whether following its dictates will effectively promote such values as liberty, justice, and happiness. By its fruits shall originalism be known; and the same goes for rival theories, such as living constitutionalism. But this particular fruit is far more palatable than Maltz suggests. While no constitutional theory should be discarded because it leads to bad results on any one issue, it would indeed give me pause if – as some critics claim – originalism requires judges to uphold laws mandating racial segregation or forbidding interracial marriage. I have no such hesitation about allowing unequal apportionment.
Wow.