November 21, 2005
Nathan Newman has a convincing argument that Alito should not be confirmed: that he is an enemy of liberty, democracy, and good government:
NathanNewman.org: [F]orget Roe--that's just confirmation of what everyone suspected, and I continue to believe (along with Ruth Bader Ginsburg) that Roe was not particularly helpful to abortion rights in the long-term. But what is most striking about Alito's statement is this line:
In college, I developed a deep interest in constitutional law, motivated in large part by disagreement with Warren Court decisions, particularly in the areas of criminal procedure, the Establishment Clause, and reapportionment.
For the non-lawyers out there, Alito meant he was against the Supreme Court decisions requiring that all state legislative districts be designed to guarantee "one person, one vote."... [T]he reapportionment cases--Baker v. Carr and Reynolds v. Syms--dealt with a problem that democratic voting inherently could not correct, namely the lack of real democracy in most state legislatures. In Tennessee for example, the state had drawn up voting districts back in 1901 and had refused to redraw the district lines since then, meaning that all urban growth had been packed into a few districts where those voters were denied equal political power to voters in other districts with fewer voters and thus far more power per voter.
UPDATE: My father was taking a class taught by legal process honcho
H.L.A. Henry Hart when one of the reapportionment cases came down. He says that Hart went berserk in the classroom: since the U.S. Constitution included a radical departure from one-person one-vote--the Senate--how could the Supremes, as a matter of legal process, dare say that states could not do (as part of their own internal politics) what the federal government had done (as part of its internal politics)? That it was unjust for Tennessee's government to be dominated by rural voting interests was, to Hart, beside the point: the business of the Supreme Court was to say what the law is, not to establish justice.
In addition to legal process folks, originalists have an enormous problem with the reapportionment cases. Ask Jemmy Madison whether state legislative and congressional districts should have to be drawn to include equal populations, and he would think you insane. The Constitution guarantees a republican form of government, he would say, not a mob-rule democracy. If the legislature of Tennessee wants to discount urban voters 75%, he would say, it has a perfect right to do so.
But I haven't read recently about any originalists (save Alito) saying that the reapportionment cases were wrongly decided. Perhaps they are recognizing that a written constitution for a common-law judicial system is a strange, subtle, and wondrous thing.
Posted by DeLong at November 21, 2005 08:05 PM