Signs of a power struggle.

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Founders Would Approve of Arizona's Meddling

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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To the Founding Fathers, democracy was a dirty word. What James Madison and his colleagues wanted was a republic -- defined in terms of representative government, not government directly by the public. “We the People” ordained the Constitution -- but we the people were never supposed to govern directly, or heavens knew what trouble we might get into.

The U.S. Supreme Court on Monday will consider the question of whether to take the Framers’ anti-democratic instincts seriously. At issue is how Arizona shapes the districts for elections to Congress.

The Framers were pretty clear: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” In Arizona, however, the people since 2000 have decided to sidestep the legislature with its inevitably partisan districting process. Instead, Arizonans by referendum empowered an Independent Redistricting Commission to design their congressional districts.

So is it constitutional for Arizonans to skip over “the legislature” in creating districts?

If you’re a real originalist, the question looks as if it should be open and shut. A districting commission is not the legislature. The people of Arizona have tried to circumvent the Constitution with direct democracy. And democracy, remember, is a bad thing when seen from the perspective of the late 18th century.

The problem with originalism, though, is that most of the time, it’s bunk. At the risk of stating the obvious, we don’t live in the 18th century. Today we think the U.S. actually is a democracy, or ought to be. The popular initiative or referendum has been part of how lots of states govern themselves since the late 19th century. The results are sometimes a little zany, to be sure. But considering how much special interests can distort what happens in state legislatures, plenty of states -- especially west of the Mississippi– include some form of initiative in their government structure.

The Supreme Court addressed one form of the referendum question in 1912, in Pacific States Telephone and Telegraph v. Oregon. The court then considered the claim that the initiative system violated the clause of the Constitution that guarantees that the states will have a “republican form of government.” Cleverly, the court didn’t expressly insist that the referendum process was truly republican. Rather, the court, in an opinion by the otherwise forgettable Chief Justice Edward D. White, held that the Constitution left it to Congress to guarantee a republican form of government to the states.

The court concluded that it therefore lacked jurisdiction to hear the case. In effect, the decision validated the legitimacy of referendums. In other words, it cleverly sidestepped republican originalism in recognition that even our most fundamental forms of government have changed since the days of the Framers.

Should the Pacific States principle apply to redistricting? In 1916, four years later, the court considered exactly this question. Davis v. Hildebrant was a challenge to Ohio’s referendum provision that allowed the public to veto any law passed by the legislature. Challengers relied on the same clause that’s before the court today, and argued that the popular veto provision violated the legislature’s sole right to specify the districts.

The very same Chief Justice White wrote the opinion. He began with a red herring, citing the second half of the clause in the Constitution that gives the state legislatures the power to specify the time, place and manner of elections. It reads: “but the Congress may at any time by Law make or alter such Regulations, except as to the Places of choosing Senators.” White explained that Congress had enacted legislation that plainly anticipated that some states might incorporate a referendum into their districting process. He didn’t quite say that Congress had the power to alter the state’s reliance on its legislature -- because the clause plainly doesn’t confer that power. But he did say that “so far as the subject may be influenced by the power of Congress,” Congress had no objection.

Then White turned to his Pacific States opinion. In essence, he said, the challengers’ view “must rest upon the assumption that to include the referendum in the scope of the legislative power is to introduce a virus which destroys that power, which in effect annihilates representative government.” This couldn’t be true, White said -- because the Pacific States precedent made it clear that only Congress could say what counted as a republican form of government. The strong implication was that we should move beyond old-fashioned republicanism and recognize the referendum for what it now had become -- an integral part of state governance.

To a true originalist, White’s doctrinally imprecise performance shouldn’t be very convincing even a century later -- and the Arizona referendum model should be struck down.

To anyone who believes in contemporary democracy, however, the wisdom of White’s approach should be evident notwithstanding its technical fuzziness. If referendums were normalized as part of state government a century ago, they certainly shouldn’t be overturned now. The Constitution was designed to evolve. The Framers themselves weren’t originalists. James Madison himself thought a national bank was unconstitutional -- then eventually signed such a bank into law while president. The ultimate irony of regionalism is that it’s a constitutional innovation. Today’s case shows the tragedy of originalism: It’s a constitutional straitjacket -- and it’s bad for democracy.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

To contact the author on this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor on this story:
Stacey Shick at sshick@bloomberg.net