Constitutional Preservation and The Judicial Review of Partisan Gerrymanders

This Essay makes three contributions to the debateover whether the Constitution contains a judiciallyenforceable constrain on gerrymanders. First,it directlytackles the Chief Justice'sfear of thejudiciaryappearingpartisan,observing that the same fear would exist if theConstitution explicitly banned gerrymanders andexplaining why an implicit ban should be no lessjudicially enforceable than an explicit ban underMarbury v. Madison. Second, invoking the idea of"institutional forbearance" in the important new bookHow Democracies Die, the Essay shows how theElections Clause can be construed to protectcongressional districting from abuses of legislativediscretion committed by state legislatures. Together,these two points lead to a third: the most essential dutyof the Court, according to originalist theories ofconstitutional interpretation, is to preserve theConstitution against changes that would undermine its provisions or its overall core commitment to the creationof a federal republic for the United States; thus, insofaras virulent gerrymanders increasingly threaten themeasure of popular sovereignty that elections to thefederal House of Representatives were designed toachieve, the preservationist function of originalismrequiresjudicial invalidation of those gerrymanders