Alito on Federalism, not Gerrymandering

Lindsay Beyerstein over at Majikthise offers her take on Supreme Court nominee Samuel Alito's alleged hostility to the reapportionment decisions of the Warren court, in a post titled "Alito on Gerrymandering." I mention the title because I believe that it misses the point entirely. The issue, as far as I can tell, isn't gerrymandering or reapportionment---it's federalism.

First some background. Here's the issue as summarized by the Washington Post:

In 1985, when Alito was applying for a political appointment in the Reagan administration, he wrote that he disagreed with decisions by the Warren Court in the 1960s involving "reapportionment." Those rulings required electoral districts to have equal populations and helped ensure greater representation of urban minorities.

Note that only a single word is quoted. That's because that's all there is. As far as I can tell, all of the noise we're hearing around this issue is based on a single word in that application. Here's the full sentence:

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. [Emphasis mine.]

Naturally, any conclusions drawn from such a small body of evidence will be highly speculative. The Washington Post mentions Baker v. Carr and Reynolds v. Sims as cases to which Alito was likely referring. The most important fact to understand about these cases is that both involved disputes over the apportionment of electoral districts for state legislatures. The Washington Post article does not mention this.

I can understand how some might believe that anyone who would disagree with these decisions must be anti-democratic or oppose the one-man-one-vote principle. After all, most people seem to view the Supreme Court as the final arbiter of all things legal, to which one can appeal any issue not resolved to one's satisfaction in the state courts. But that's not the way it's supposed to work. The Federal Government and its courts were created to deal with matters of national interest such as treaties and patents, not to right all wrongs everywhere. The Constitution clearly defines and limits federal jurisdiction, and for certain issues the state courts have the final say.

Disputes related to state-level elections arguably constitute one such category of issues. In the aforementioned cases, the Supreme Court claimed jurisdiction by alleging that malapportionment violated the Equal Protection clause of the 14th Amendment. This cannot possibly be correct; if the 14th Amendment were intended to ensure equal legislative representation for all citizens of a state, then the 15th amendment, which guaranteed suffrage to black men, would have been unnecessary. Yet it was ratified just two years after the 14th.

Furthermore, voting is a procedural matter, not an individual right. As long as the outcome (i.e., the laws produced) is acceptable, no one is harmed or denied equal protection of the law simply by being underrepresented in the process.

Many will probably disagree, and that's fine. My purpose is not to convince you that I'm right about Baker v. Carr, but merely to demonstrate that a person can love democracy and believe fully in the one-man-one-vote principle, yet still reasonably deny that the federal courts have any jurisdiction over state electoral procedures. There's nothing "radically conservative" or immoderate about respecting the Constitution and the limits it places on the Federal Government and its jurisdiction.

If the left is to insist on jumping to conclusions about a single word Alito wrote in 1985, then they should at least jump to a fair and reasonable conclusion, namely that Alito is a federalist, rather than that he has a "radically retrograde" distaste for democracy.

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