What Does the Constitution Say About Gerrymandering?
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What Does the Constitution Say About Gerrymandering?

September 13, 2019

INTERVIEWER: Could you talk to us about gerrymandering in relation to the Constitution? Yes. The idea of congressional districts is really mentioned very little in the Constitution. Again, it bears on an idea that precedes the Constitution. It was unique, really, to American Constitutionalism. It was the idea of direct elections, not virtual representation, but direct representation. In English law, in the English constitutionalism, parliamentary… members of Parliament could represent all of England. They didn’t have to be from a specific district. In American constitutionalism, however, we developed this idea that you needed to be elected by people you knew. You needed to be elected from a specific geographical area. So it really appears in Section 1 of… pardon me… Article 1, Section 2: The House of Representatives, but there’s nothing very specific about it. It’s left vague. The assumption from the Founding Fathers is that the unwritten Constitution that governs how we do democracy, how we carry out legitimacy—this project of democratic sovereignty in America—would still hold sway. In the original Constitution—state constitution—of 1776 from Pennsylvania, for example, it simply said that every town should send representatives to the Pennsylvania Assembly. They didn’t bother to define the towns. They didn’t bother to say specifically how many people came from the towns. It was assumed that you had to come from a place that had specific boundaries, that had meaning and political history. I live in the town of Kutztown, Pennsylvania. It’s about 5,000 people. We all know the boundaries. It has a history. It’s a strong Pennsylvania Dutch place, and it has a political culture to it. Our district, however, is the… it’s now the… Gosh, it’s hard to remember. It’s really hard to remember what your district is, isn’t it? Can you remember your Pennsylvania district? Can you remember your state district? It’s a number, not a name. It’s like a prisoner. It has no identity. So the problem of gerrymandering is not so much that it advantages one party or the other. Both parties do it. The problem is that it undermines our Constitution. If congressional districts have no political identity, then what are we voting for? It ends up that the only thing that people have in common in their congressional district is their congressman. That’s the problem of gerrymandering.

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