Maltz: Originalism and Partisan Gerrymandering: A Response to Professor Foley

The following is a guest post from Professor Earl Maltz of Rutgers Law:


In a recent series of blog posts drawn from a forthcoming article in the Georgia Law Review, Professor Edward B. Foley argues that a successful constitutional challenge to extreme political gerrymanders of congressional districts can be based on the original meaning of the Constitution.  Professor Foley contends that, even in the absence of federal statutes regulating such gerrymanders, by analogy to the dormant Commerce Clause, limitations on the actions of state governments can be inferred Article I, section four, which grants Congress the authority to establish the rules under which members of the House of Representatives are chosen.  Second, relying on what he describes as “structural originalism,” Professor Foley argues 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.”  However, despite a valiant effort, Professor Foley ultimately fails to demonstrate that the use of partisan gerrymanders is barred by the original meaning.

In making his argument, Professor Foley makes only passing reference to the most directly relevant constitutional provision—the part of Article I, section four, which provides that “[t]he Times, Places and Manner of holding Elections for….Representatives, shall be prescribed in each State by the Legislature thereof,” subject only to the proviso that “Congress may at any time by Law make or alter such regulations.”  The existence of this language undermines Professor Foley’s argument on a number of different levels.

First, the grant of power to the states renders the analogy to the dormant Commerce Clause completely inapposite.  Nothing in the Constitution speaks directly to the power of state governments to regulate interstate commerce.  Instead, dormant Commerce Clause arguments are based on the theory that the grant of power to Congress implicitly limits a preexisting state power.  By contrast, Article I, section four explicitly provides the state legislatures with the authority to prescribe the time, place and manner of congressional elections, and the fact that Congress is vested with the authority to override state laws on this subject does not even remotely suggests that state power is limited in the absence of federal legislation. (For reasons too long to explain in this format, Ex parte Siebold, which Professor Foley cites in support of this position, is in no way to the contrary).

Second, not only does the language of Article I, section four undermine the constitutional challenge to political gerrymanders on its face, but the most detailed discussion of this language at the Constitutional Convention is flatly inconsistent with Professor Foley’s argument.  At the convention, James Madison provided a detailed description of the extent of state power to regulate the time, place and manner of congressional elections after Charles Pinckney and John Rutledge of South Carolina moved to eliminate the power of Congress to alter those regulations.  In opposing the motion, Madison first observed that times, places and manner “were words of great latitude” and that “it was impossible to foresee all the abuses that might be made of [this] discretionary power.”  Moreover, Madison explicitly envisioned the possibility that “the inequality of the representation in the legislatures of particular states would produce a like inequality in their representation in the national legislature, as it was presumable that the counties having the power in the former case would secure it to themselves in the latter.”  For this reason, he argued, it was necessary for Congress to have the power to override state regulations that it deemed inappropriate.

The import of Madison’s analysis could hardly be clearer.  In his view, the Time, Place and Manner Clause by its terms vested the state governments with the authority to adopt whatever systems they choose for the selection of representatives (subject, of course to the specific requirements of Article I).  He conceded that, at times, states might abuse this authority.  However, Madison implicitly indicated that the power to remedy the problem would lie only with Congress.  In the absence of congressional action, in Madison’s world the federal courts would have no role to play in policing the state apportionment statutes–not because apportionment issues raise political questions, but rather because, in substantive terms, in passing such statutes the states are exercising a power granted to them by the Constitution itself.

Of course, nothing in the foregoing should be taken to suggest that radical partisan gerrymanders are in any sense a good thing.  Moreover, one can fashion a plausible constitutional challenge to such gerrymanders from the principles embodied in decisions such as Reynolds v. Sims and Wesberry v. Sanders.  But to suggest that such a challenge would draw any support for the original meaning of the Constitution is simply wrong.


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