Constitutional Preservation and The Judicial Review of Partisan Gerrymanders

Authors

Edward B. Foley, Ohio State University Moritz College of Law

Publication Date

2018

Abstract

This Essay makes three contributions to the debate
over whether the Constitution contains a judicially
enforceable constrain on gerrymanders. First,it directly
tackles the Chief Justice'sfear of thejudiciaryappearing
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
requiresjudicial invalidation of those gerrymanders

Recommended Citation

Foley, Edward B. (2018) "Constitutional Preservation and The Judicial Review of Partisan Gerrymanders," Georgia Law Review: Vol. 52: No. 4, Article 5.
Available at: https://digitalcommons.law.uga.edu/glr/vol52/iss4/5