Kailey Alf (Campbell University – Norman Adrian Wiggins School of Law; Campbell University – Norman Adrian Wiggins School of Law) has posted When the Rulers Choose the People: An Originalist Defense Against Partisan Gerrymandering on SSRN. Here is the abstract:
For too long, courts invoking “originalism” have used that doctrine to justify restraint in the face of the very danger the Framers feared most: factional control of representation. Taking originalism at its word, this Article argues that if the Constitution is to be read as the Founders wrote and intended it, partisan gerrymandering is not a political question to be ignored but a constitutional violation to be remedied. The Supreme Court’s decision in Rucho v. Common Cause declared partisan gerrymandering a political question beyond judicial reach.1 Yet the Constitution’s text, structure, and history say otherwise. The Constitution’s design, the Guarantee Clause’s command of republican government, and the Federalist Papers all make clear that government must remain accountable to the people rather than to any party. When those in power manipulate districts to entrench their faction and silence political opposition, they abandon that accountability. Judicial restraint in such circumstances is not fidelity to originalism but abdication of the vigilance the Framers demanded of the judiciary. Unlike prior theories grounded in proportional fairness or statutory interpretation, this Article unites the First Amendment, Equal Protection, and structural constitutional principles within an originalist framework—supplying the judicially manageable standard Rucho declared absent. When read through the Constitution’s original meaning, partisan gerrymandering emerges as a modern form of viewpoint discrimination and factional hostility—an affront to the First and Fourteenth Amendments, the Guarantee Clause, and the republican design the Framers enshrined. Far from being unmanageable, the Founding generation itself supplied a workable standard: representation “as nearly equal as circumstances will admit.”2 That principle, applied in Virginia’s 1788 apportionment and echoed throughout early American practice, demonstrates that equality in representation was measurable, deliberate, and constitutionally required. To correct modern gerrymandering is not to invent new doctrine but to restore the Republic’s original constitutional architecture, ensuring that the people, not factions, remain the source of all legitimate power.
Despite the title, there is very little discussion of the original public meaning of the constitutional text. For example, the discussion of the Guarantee Clause focuses on the general purposes of the clause and does not attempt to reconstruct the communicative content of the phrase “republican form of government.” Instead, the theoretical foundation appears to be some form of constitutional pluralism. For a discussion of the methodology of public meaning originalism, see Originalist Methodology.