Reapportionment, Originalism, and Supreme Court Nominees

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6 Responses

  1. Will Baude says:

    Doesn’t Michael McConnell– clearly an originalist, I had thought– argue that the first generation reapportionment cases are probably rightly decided, but under the Republican Form of Government clause (which he thinks ought to be justiciable)?

  2. washerdreyer says:

    I’m not an originalist, but I fail to see how being one entails opposing Mapp.

  3. Simon says:

    Can anyone offer some citations on the point raised above about McConnell’s view of the reapportionment cases? I’d be interested to read further on that one.

  4. Simon says:

    I agree with washerdreyer about Mapp. In my view, once one accepts incorporation – by whichever means one reaches it, legitimate or not, and most originalists do accept incorporation – the result in Mapp becomes fairly obviously correct. As I previously commented:

    I do not agree that doctrinal discussion can overrule the explicit text of the Constitution or its amendments . . . [but] I have no objection to doctrine filling the gaps in the Constitution; it is, after all, “a constitution that we are expounding.” I have no objection, therefore, and for example, to Weeks v. U.S. (and even Mapp v. Ohio), where the Court created binding doctrine which is [necessary or appropriate] to giving teeth to the safeguards of the Constitution.

  5. Mike Dimino says:

    In response to Simon’s first point, interested readers should read McConnell’s “The Redistricting Cases: Original Mistakes and Current Consequences,” 24 Harv. J.L. & Pub. Pol’y 103 (2000). Even if McConnell is correct (and McConnell is an outlier in thinking that the Guarantee Clause is judicially enforceable), it does not mean that the Court was correct to ground the reapportionment cases on the Equal Protection Clause and Article I, Section 2 (providing that the House of Representatives should be chosen “by the People of the several States”).

  6. Simon says:

    Even if McConnell is correct (and McConnell is an outlier in thinking that the Guarantee Clause is judicially enforceable), it does not mean that the Court was correct to ground the reapportionment cases on the Equal Protection Clause and Article I, Section 2

    Well, two thoughts to offer in reply to that. First, virtually every theory starts out as an outlier, and given what I understand to be the current state of Constitutional law in much of the academy, I think being an “outlier” theory should be worn as a badge of honor.

    Second, in response to the point that “it does not mean that the Court was correct to ground the reapportionment cases”. It seems to me – and I’m halfway through reading a paper that makes essentially the same point – that Originalism has a problem with stare decisis, because it has no generally-accepted framework for the application of stare decisis. (I find Justice Thomas’ complete disregard for precedent troubling, but it is far more coherent – both internally and against other aspects of Originalist theory – than Justice Scalia’s patchwork approach, which I will admit is excessively discretion-conferring for a Justice who makes much of non-discretionary judging). If originalism is to avoid being a theory which “knows how to die, but not how to govern” (that is, a gloriously irrelevant academic concept, rather than a practical tool for judges to use), it must account for stare decisis in a cohesive and internally consistent manner, either by rejecting it outright, or by explaining in the most specific terms possible when it is applicable and when it is now. That is to say, with so many non-originalist precedents on the books, the theory must offer an approach on what to do with those theories.

    My own view, previous offered here, is that the starting point for determining whether or not a precedent carries the weight of stare decisis is (and must be) whether or not that case was correctly-decided. However, the standard I would suggest – and the relevance I think this has to Mike’s point – is not “would I have joined the majority opinion,” but “would I have concurred in the result, on one ground or another”? Seen that way – and this is the reason I’m interested to read McConnell’s paper – what I’m saying is that even if the reapportionment cases were decided on entirely grounds, they should not be overruled (even if they are not expanded, per Bob Bork’s conception of limitation of effect) as long as there is some reasonable, correct and originalist grounds on which they could be upheld. Thus, even if the equal protection argument is completely phoney, if one could demonstrate that the same result can be reached though the republican form of government clause, that precedent should not be overruled.

    This has obvious import when we contemplate any number of stare decisis or commerce clause precedents, which originalists are usually charged with being out to overturn. That is, if a case turned on incorporation via substantive due process yet could be upheld via P&I incorporation, it should be upheld.