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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.

Reader Discussion

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on August 22, 2019 at 07:18:13 am

"To its credit, the majority does not frame that point as an originalist constitutional argument. After all (as the majority rightly notes), racial and residential gerrymanders were also once with us, but the Court has done something about that fact. See ante, at 10.[1] The majority's idea instead seems to be that if we have lived with partisan gerrymanders so long, we will survive." _Kagan, J., dissenting.

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David Upham
on August 22, 2019 at 09:28:31 am

Good article, but fails to address the effects of the deviation in terms of political impairment/erosion. By way of example, the socialists in Germany imposed total gun control on the population in the late 20s. Hitler ended it in 1938, restoring the prior setting, but in a much changed milieu (absent those 'deplorables'!). Does the restoration of the 'original' understanding now, no matter how accomplished, continue the erosion the 'novel' take in Reynolds began? Nothing like helping Democratic socialists sustain their usurped advantage established by an Olympian deviation. But then, we'll just have to wait and see.

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gdp
on August 22, 2019 at 10:39:08 am

Interesting piece - "excluding Indians not taxed" - I would argue this is language of the 14th Amendment (revising Article 1 language) is good argument why the National Census should not include illegal immigrants for terms of apportionment of representatives, direct taxes, and "the almost $700 billion distributed annually by the federal government in grants and other funds." *

Briefly, I would argue the definitive language driving the framers intent is, "not taxed", and that they couldn't have intended for all other untaxed persons to be included; nor have predicted the extraordinary degree to which illegal entry (and public dependence) would one day overwhelm the nation.

* https://www.heritage.org/immigration/commentary/why-should-states-protect-illegal-immigrants-be-rewarded-more-political

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Paul C Binotto
on August 22, 2019 at 13:24:25 pm

I guess I must gave missed something.

Aren't our voting districts already calculated by the number of people living there whether they pay taxes or not, whether they are eligible to vote or not? Or is the Census question about citizenship the number that is used?

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Standing Fast
on August 22, 2019 at 14:35:22 pm

I would argue there is a distinction to be made between "taxed and tax-exempt" persons and "not taxed" persons; the former encompassing all "documented", (i.e. citizens, permanent residents, and other classes of documented), persons, "excluding Indians not taxed", subject to direct taxation upon income production, and eligible to vote upon majority and/or citizenship; the latter encompassing undocumented person's, (and "Indians not taxed), for whom income production, (and therefore, subject to direct taxation) is permissible only upon documentation as defined above, (or change in Indian taxation status); and eligible to vote only upon citizenship.

In turn, apportionment is to be determined as a measurement only of documented taxed and tax exempt persons (citizens, permanent residents, and other classes of documented persons), and to exclude undocumented persons, not taxed, and "Indians not taxed'.

In this sense, Citizenship per se, need not be the

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Paul C Binotto
on August 22, 2019 at 14:37:43 pm

(Continued from above)

In this sense, Citizenship per se, need not be the only documented status by which apportionment is calculated.

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Paul C Binotto
on August 22, 2019 at 15:01:55 pm

Doesn't the moral obligation to obey the law come from the fact that the law was passed by a majority of people (initiative) or their representatives (bill)?
That is, isn't there no moral obligation to obey a law that's passed by representatives who don't represent the majority's will?
If I know from poll's that only 40% of people support a recently passed law, don't I have no moral obligation to obey it or perhaps I have a moral obligation to civilly disobey it until the legislature is back in the hands of the majority?
Do I even have a moral obligation to obey a law until it's been reviewed by the court?

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Johnathan Stewart Mil
on August 22, 2019 at 15:54:20 pm

Uh. Methinks you dost split hairs too much. We the People have a moral obligation to obey the laws of the land. If a law is unjust we must obey it until it is repealed or replaced with a better law. If we think a law is unjust enough to justify opposition, then we do have a choice. Change the law or disobey.

If we decide to get the law changed, we have our work cut out for us.

If we choose to disobey it, we must be willing to take the consequences (fines, arrest, imprisonment). Those who think they have a moral right to disobey any law they don't like without consequences are in dreamland. If you can't pay the fine or do the time, don't do the crime.

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Standing Fast
on August 22, 2019 at 17:26:37 pm

"We the People" are the actual majority, not a gerrymandered majority.

If 60% of voters in Maryland are democrats, then a republican-majority legislature is not "we the people"

If 65% of the voters in Wisconsin are republicans, then a democrat-majority legislature is not "we the people"

If republicans and democrats only make up 80% of the people of Vermont, then a 98% republican and democrat legislature is not "we the people"

The reason we believe MLK was morally right was because we know that Jim Crow Laws did not represent the majority's will (we the people), only the white majority's will (them the barbarians).

Of course we also know that people are rational--they support free speech, presumption of innocence, etc. So we have judicial review to make sure the law represents the rational "we the people's" will, and not some kind of school-indoctrination will that opposes free speech, due process, etc. Free people wear Rawls' Veil of Ignorance, not Mohammad's Veil of Servitude.

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Takeback Sees
on August 22, 2019 at 20:35:34 pm

Respectfully, I think your reasoning is faulty, and in my opinion, seems to rather distort republican democracy.

And maybe relieves a little too heavily on the notion that most people vote strictly along party-lines not just in national elections, but also at the local level, where dynamics that influence a voter's decision are more varied and complicated; even personal in smaller jurisdictions.

But, I tend to agree with what seems to be your lack of support for gerrymanders.

In my view, gerrymanders are mostly undesirable in a democratic society not only because they create party majorities where they may not exist, but more so, because they can be used to create overwhelming (even permanent) super-majorities where party majorities already exist.

It's true that most often, because both parties engage in this practice, the ill-effects of the gerrymander tend to balance each other out over time. However, in periods such as now, where citizens are deeply divided, and more willing to dispense with civil and political fairness, factional tyranny becomes a real threat to political minorities and the democratic republic.

And, therefore, the (very good) arguments in support of how and why the Electoral College plays a vital role in protecting the minority from factional majorities, can also be made as to why gerrymanders can pose serious threats to the minority.

Interestingly enough, complaints about gerrymanders seldom emerge except during these periods exceptional electorate division.

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Paul C Binotto
on August 23, 2019 at 00:59:15 am

I have modified this post to remove a mistaken cite to an article by William Baude, and made a more nuanced point about Reynolds and the claim that originalism is the positive law.

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John O. McGinnis
on August 23, 2019 at 02:23:18 am

Your points here are certainly good ones, Professor McGinnis! That said, though, one can't help but wonder if the conservative SCOTUS Justices are being somewhat selective as to when exactly they apply the principles of Reynolds v. Sims. After all, the conservative majority in Bush v. Gore did, in fact, cite Reynolds v. Sims to justify its holding in Bush v. Gore. Had Reynolds been consistently viewed as an illegitimate precedent by conservative SCOTUS Justices, maybe they should have tried limiting the scope of Reynolds as opposed to applying its principles to very novel situations such as they did in Bush v. Gore. One can't help but wonder if they would have done just this had the sides in the Florida recount battle been reversed--with Gore being in the lead and Bush getting a new recount--even a recount that could be viewed as being highly unfair (due to its arbitrary rules).

Also, I want to make one more point about Reynolds: Living constitutionalists sometimes praise that decision and argue that the factor that originalism can't account for it is a strike against originalism. However, I would like to ask living constitutionalists this question: Had the original US Constitution (as in, the 1787 text) explicitly stated that US states are allowed to deviate from the "one person, one vote" principle however they deem fit in their legislative apportionment, would they think that Reynolds v. Sims should have still been decided in the same way that it was decided in real life? Also, if not, wouldn't this be a strike against your method of living constitutionalism in this scenario just like it is a strike against originalism in real life?

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Daniel
on August 23, 2019 at 02:28:19 am

"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."

In regards to this claim, let's look at this from the perspective of meta-intent, shall we? In other words, here's the crucial question: Just how much discretion did the draftsmen and/or ratifiers of the 14th Amendment actually intend future generations to have in regards to the interpretation and application of the 14th Amendment?

For instance, the Privileges or Immunities Clause of the 14th Amendment doesn't actually specify what the privileges or immunities that it is referring to actually are. However, this doesn't necessarily mean that the draftsmen and/or ratifiers of the 14th Amendment would have been fine with Congress and/or SCOTUS defining privileges or immunities as whatever they would like--whether abortion, same-sex marriage, adult incest, polygamy, the right to own cartoon/animated child porn, the right to own a child sex doll/child sex robot, et cetera.

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Daniel
on August 23, 2019 at 11:12:52 am

The problem is that no one in the legal profession accepts humankind’s ineluctable work to conform to the-objective-truth. Fellow citizens who do not know that they trust-in and commit-to equity under statutory justice ought not be authorized to vote. That may include some U.S. Senators and other officials.
Perhaps fortuitously, the preamble to the U.S. constitution (the U.S. preamble) offers the proposition to develop fidelity to the-objective-truth. The-objective-truth is the ineluctable evidence by which truth is measured. Scholars and others who reject “the-objective-truth” or its better expression (for example, by lessening it to “objective truth” or “truth”) refuse responsible human liberty. Moreover, they refute the civic, civil, and legal power of the U.S. preamble, a civic people’s proposition that defines We the People of the United States.
The U.S. preamble offers this proposition or better: civic citizens communicate, collaborate, and connect to provide five public institutions---integrity, justice, peace, strength, and prosperity---in order to encourage responsible human liberty to the continuum of living citizens. In public, I happily return to the original nouns---Union, Justice, Tranquility, defense, and Welfare---for unison reading of the U.S. preamble and use the five personal interpretations to order my life under the discipline of civic integrity.
The U.S. preamble is this nation-of-people’s commitment to human equity under statutory justice. Statutory justice is perfected statutory law, an unattainable and worthy goal.
Again perhaps fortuitously, the action taken by the U.S. preamble’s proposition is to establish and provide maintenance-of a system of governance held accountable by the civic people---those who trust-in and commit to the U.S. preamble’s five public provisions for responsible human liberty. Key is the provision to amend un-just articles that follow the proposition. No one knows the ultimate better future of a civic people under the U.S. preamble with the-objective-truth as standard.
People may oppose my interpretation of the U.S. preamble. It seems evident that the U.S. Congress has never supported it, erroneously labelling it secular.
Consider the U.S. Senate. Senators begin each session-day with prayer and the pledge of allegiance. Neither of those acts is consistent with the U.S. preamble’s proposition. The U.S. preamble leaves religion and political-allegiance for each citizen to determine under statutory law. By design, the Senate is the most reliable political body in federal government. Senators are limited to six years before facing accountability to We the People of the United States---a civic people. Both Supreme Court Justices and writers for the media are nearly exempt from accountability. More than any other body, the Senators ought to conform to the U.S. preamble’s proposition and ought to read it in unison to start each session-day. I request that the U.S. Senators so reform.
Religious prayer, a colonial-British tradition, and other forms of “originalism” oppose the U.S. preamble’s proposition. Counting “blessing” a religious expression is true for some, but not all. Even as a representation of whatever-God-may-be, “blessing” means approval-of and encouragement-in [responsible human liberty]. It seems evident that whatever-God-may-be, domestic peace is a human responsibility. We the People of the United States ought not continue suffering erroneous colonial-British traditions.

In tyranny against civic discipline, We the People of the United States suffers the folly of a U.S. Supreme Court who has yet to discover the standard by which humankind marches forward: the-objective-truth (or better expression of the ineluctable evidence by which truth and justice are measured).

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Phillip Beaver
on August 23, 2019 at 12:32:30 pm

John:

Let me compliment you for this fine essay.
It strikes me that your explication, your "expounding" of the Civil War Amendments gives credence to the "textualist approach.
Clearly, SCOTUS has, in the past, with its various and ingenuous readings of the EP and DP Clauses sought to divine intent.

Yet the very fact that the same men who "crafted" the 13th & 14th A's consider it wise and proper to also pass the 15th leads one to the inescapable conclusion that VOTING was NOT covered, nor intended to be, by the earlier amendments.
Here is an example where the TEXT not only differs from the *divined* iontent but CONTRADICTS "that" intent.

Good analysis.

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gabe
on August 23, 2019 at 15:12:28 pm

Good point, very good, point, Mr. Gabe. Of course, there is always the possibility that voting was intended to be covered in the 14th, but that it (voting) was blocked by national injunction because the reason given was contrived;not genuine...

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Paul C Binotto
on August 23, 2019 at 15:58:16 pm

“But when the right to vote . . . is denied to any of the . . . inhabitants of such state . . . or in any way abridged, except for participation in rebellion . . .”

Does opposition to equity under the rule of law as proposed in the preamble to the U.S. Constitution establish rebellion and therefore disqualify the voter?

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Phillip Beaver
on August 25, 2019 at 16:23:11 pm

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