Constitutional Preservation and the Judicial Review of Partisan Gerrymanders

Abstract

This essay makes three contributions to the debate over whether the Constitution contains a judicially enforceable constraint on gerrymanders. First, it directly tackles the Chief Justice’s fear of the judiciary appearing partisan, observing that the same fear would exist if the Constitution explicitly banned gerrymanders and explaining why an implicit ban should be no less judicially enforceable than an explicit ban under Marbury v. Madison. Second, invoking the idea of “institutional forbearance” in the important new book How Democracies Die, the essay shows how the Elections Clause can be construed to protect congressional districting from abuses of legislative discretion committed by state legislatures. Together, these two points lead to a third: the most essential duty of the Court, according to originalist theories of constitutional interpretation, is to preserve the Constitution against changes that would undermine its provisions or its overall core commitment to the creation of a federal republic for the United States; thus, insofar as virulent gerrymanders increasingly threaten the measure of popular sovereignty that elections to the federal House of Representatives were designed to achieve, the preservationist function of originalism requires judicial invalidation of those gerrymanders.