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Silent Originalism and the Reweighting of Precedent 

The most important practical question of originalism is how to deal with the huge number of non-originalist precedents. In its June decision in Rucho v. Common Cause, the Supreme Court showed one way: Refuse to give a flagrantly non-originalist precedent generative force while not overruling it or discussing it in any detail.

A five-member majority held in Rucho that political gerrymanders presented political questions that the Court would not disturb. Its majority reached the right result, although not as forthrightly as might be desired. There is no reason to raise the “political question” doctrine, since the federal constitutional case against gerrymander founders so clearly on the merits. The Fourteenth Amendment does not prevent states from imposing such gerrymanders. Indeed, as an original matter, the Fourteenth Amendment does not justify the Court’s “one-person, one-vote” decision in Reynolds v. Sims (1963), from which a decision prohibiting gerrymanders would have been an extension. Nevertheless, the gross legal infirmity of the reasoning in Reynolds was a silent factor influencing the Court’s Rucho decision.

Reynolds v. Sims, a Consciously Anti-Originalist Opinion

The original meaning of the Equal Protection Clause of the Fourteenth Amendment does not provide a rule of “one person, one vote”; indeed, it does not guarantee an individual right to vote at all. (The Guarantee Clause requires that states must provide a republican form of government, but at the Founding, republicanism was consistent with substantial restrictions on franchises for particular classes of individuals.) This reading is not a difficult or close one, but follows from the text of the amendment itself, the statements of its sponsors, and a subsequent amendment to the Constitution.

Begin with the language of the second section of the Fourteenth Amendment:

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

This second section, not the Equal Protection Clause in the first section, thus speaks specifically to voting rights. It does not prevent a state from denying such rights to anyone, including the newly freed slaves. (As we will see, that was the enterprise of the Fifteenth Amendment.) But it does specify that if a state chose to take away voting rights from male inhabitants, its power in Congress and in the Electoral College would be proportionately reduced.

This section would be superfluous if the previous section’s Equal Protection Clause guaranteed the right to vote, let alone guaranteed an equally effective vote by geography as proclaimed under the “one person, one vote” concept enshrined in Reynolds.

Moreover, the sponsors of the Fourteenth Amendment specifically said it did not guarantee the right to vote. Instead, they noted that it protected against discrimination in other kinds of laws, like the right to contract. (These rights were in fact known at the time as civil rights to distinguish them from political rights like voting.) Finally, it took the Fifteenth Amendment to guarantee voting rights against discrimination on the basis of race. It was adopted just a couple of years after the Fourteenth Amendment. It, too, would seem to be superfluous if the Equal Protection Clause addressed voting rights.

These arguments are not new. In Reynolds, Justice John Marshall Harlan II made them eloquently in one of the best dissents of his entire tenure. And they were not answered by the majority opinion, not one of them. Reynolds is not only a non-originalist opinion, it is anti-originalist (indeed anti-textualist) opinion in failing to address the obvious arguments about original meaning in the case, arguments that were before it. Nor in my view can it be understood to be some form of evolving originalism, interpreting the broad generalities of the Constitution in light of new realities. “Equal protection” cannot be considered a broad generality that might comprehend voting rights given, as noted above, the section addressing the electoral franchise that appears right next to the “equal protection” section in the same amendment. As Harlan notes, the Fourteenth Amendment was passed “as a unity.”

This opinion shows that at times originalism was sadly not always the law in the Supreme Court during the Warren era. The justices in the majority in Reynolds were shown the originalist way and turned away from it, as surely as someone who is shown the way to a destination and consciously decides to go somewhere else. They were not confused or mistaken. This fact may have implications for the question of whether originalism can be justified as the positive law without reference to normative arguments. If the Court has at times used nonorginalist ways to justify its decisions and gotten away with it (indeed been celebrated for those decisions), there may be no clear rule of recognition as a positive matter, forcing us to make a normative case for originalism as against other views.  On the other hand, Harlan’s dissent shows that even in the Warren Court, originalism was a contender for the positive law, if often a losing one. Originalism is not a revolutionary reform.

Refusing to Accord Generative Force to Reynolds 

It impossible to believe that any of the five justices in the majority of the Rucho Court would endorse the reasoning in Reynolds. While they did not overrule the latter, they refused to give it any generative force. They declined to extend the proposition that a citizen’s vote must not be diluted by formally unequal districts, to the proposition that it must not be diluted by effectively partisan districts.

Three features of Rucho support the relevance of Reynolds’ non-originalism as a factor in how the majority decided this case.

First, the majority opinion by Chief Justice John Roberts spends an enormous amount of space showing that gerrymandering was common in the early republic. This historical discussion would have far less force if one really believed that the Equal Protection Clause applied to voting. If it did, that Clause would have swept away that aspect of antebellum America as it did many others.

Second, while Roberts mentions the slogan “one person, one vote,” he never actually cites Reynolds v. Sims. The majority recognizes that it is so flawed in its analysis that it does not deserve to be mentioned.

Third, while the Court appears to assume that there is some right to not endure extremely partisan districts, it just cannot find a manageable standard for judges to apply. But how manageable a standard must be is effectively related to how significant and deep-seated is the right. No one thinks the Court will not enforce the right to be free from racial discrimination regardless of how difficult is the context for its judicial application.

Rucho v. Common Cause provides an example of “silent originalism.” The Court does not revisit and overrule a precedent due to its inconsistency with originalism, but the precedent’s manifest inconsistency robs it of generative force. This decision shows that those who, like Professor David Strauss, consider constitutional law to be an essentially common law exercise in applying the Court’s own precedents rather than following the original meaning of the Constitution, miss something important. The strength of precedents depends on underlying theories about how the Constitution is to be interpreted. The rise of originalism is dramatically changing the weights that the Court gives to its precedents. And that reweighting can have the important effect seen in Rucho.

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