The Supreme Court Was Right About Gerrymandering: A Judgment of Constitutional Wisdom

Every election cycle, the same lament echoes across cable news and op-ed pages: "Gerrymandering is destroying American democracy." Activists demand the Supreme Court step in, drawing up "fair" districts by algorithmic formula, as though the Constitution were a spreadsheet and the Founders had simply forgotten to include a clause mandating proportional representation. They are wrong. And the Supreme Court-in its much-maligned 5-4 decision in Rucho v. Common Cause in 2019-showed more constitutional judgment than its critics will ever admit. The problem is not that the Court failed to act. The problem is that we have forgotten what kind of government we actually have. America is not a democracy. It is a constitutional republic-a government of laws designed to protect individual rights against the transient whims of majorities. And the gerrymandering debate, properly understood, is not about fairness or the "will of the people." It is about preserving the republican structure the Founders bequeathed us.

The Founders' Design: It Was Supposed to Be Messy

James Madison, in Federalist No. 10, predicted the rise of factions-groups united by a common interest adverse to the rights of others or the public good. His solution was not to empower judges to redraw maps until every district was a perfect demographic mirror. His solution was a large republic with a multiplicity of interests, making it harder for any single faction to dominate. "Extend the sphere," he wrote, "and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens." That is the key the modern reformers miss. The Founders never promised proportional representation. They never promised competitive districts. They promised a system where representatives are chosen by the people, with the states retaining plenary authority over the "times, places, and manner" of holding elections for Senators and Representatives as stated in Article I, Section 4, Clause 1. They knew that self-interested state legislatures would draw lines to benefit themselves. They also knew that the cure-centralized federal control over districting-would be far worse. As Justice Scalia wrote in his concurring opinion in Vieth v. Jubelirer in 2004, partisan gerrymandering is "an evil that the Constitution is not designed to cure." That is not a loophole. It is a feature of the republican system. The remedy for bad districting lies at the ballot box, not in the courthouse.

Rucho Was Right: This Is a Political Question

In Rucho, the plaintiffs argued that North Carolina's Republican-drawn congressional map was so aggressively partisan that it violated the First Amendment and the Equal Protection Clause. The Court declined to intervene, holding that partisan gerrymandering claims are nonjusticiable-meaning the federal courts have no manageable standards to decide them. Chief Justice John Roberts, writing for the majority, put it plainly: the Constitution does not give judges a "license to reallocate political power between the two major parties, with no plausible grant of authority in the Constitution." Critics screamed that the Court abdicated its duty. But on what constitutional basis could it have intervened? The Court had already tried those theories and found them unworkable. In Davis v. Bandemer in 1986, a fractured Court held that partisan gerrymandering claims were justiciable under the Equal Protection Clause but produced no coherent standard. Lower courts spent two decades in confusion. In Vieth, a plurality of the Court effectively overruled Bandemer, with Scalia calling it "an invitation to partisan warfare." The Court spent years trying and failing to find a "judicially discernible and manageable standard." As Friedrich Hayek would have predicted, the knowledge problem is insurmountable. No judge can determine the "correct" partisan composition of a state's delegation without imposing a subjective, centralized vision of fairness-a vision that would inevitably reflect the politics of the judge. What is "fair"? Proportional representation by the statewide popular vote? Competitive districts that split communities? An algorithm that packs and cracks until both parties are equally satisfied? Each choice is a political decision. And the Constitution leaves politics to the people. If the Court had imposed a partisan-gerrymandering standard, every map would be litigated. Every election would be followed by a lawsuit claiming the other side's map produced unfair results. Politicians would game the new rules. Judges-unelected and unaccountable-would become the de facto deciders of election outcomes. That is not a republic. That is a judicial oligarchy. Henry Hazlitt taught us to look at the unseen consequences. The seen was the hope of "fair" maps. The unseen was the endless litigation, the perversion of the judicial role, and the death of federalism.

The Real Crisis: Nationalization, Not Lines

Let me offer a heretic's insight: the obsession with gerrymandering is a distraction from a deeper disease-the nationalization of our politics. Why do partisan maps matter so much? Because representatives have become loyal to national parties, not to their local constituencies. A member of Congress from a "safe" district has no incentive to reach across the aisle or serve the unique interests of her district. She answers to party leadership and to the primary base, not to the diverse coalition that a competitive district might produce. She spends her time fundraising for the national party, not listening to local small-business owners. But that is not a maps problem. That is a cultural and structural problem. It is the rise of national media that turns every local race into a proxy for the national culture war. It is the decline of local newspapers and civic organizations. It is the transformation of Congress into a permanent campaign, where the goal is not to govern but to hold power. Thomas Sowell's constrained vision reminds us that institutions are the product of evolved traditions, not central planning. The partisan gerrymander is a symptom of a system that has already become nationally polarized. We cannot fix the symptom by changing the shape of district lines any more than we can fix a fever by changing the shape of the thermometer. If we truly wanted to restore republican government, we would not hand map-drawing to independent commissions run by "experts" who have never won an election. We would devolve power back to the states and make representatives more accountable to their local communities-not by redrawing lines, but by reducing the size of the federal government so that local interests matter again. We would empower states to set their own election laws, as the Constitution provides. We would encourage competition between states, not uniformity imposed from Washington.

What the Constitution Actually Says

We have to return to first principles. The Constitution's Framers were not agnostic about representation. They insisted that representatives be chosen by "the People of the several States" as written in Article I, Section 2. That language implies a connection between a representative and a geographically defined constituency. But it does not mandate any particular level of partisan fairness, nor does it require that each district be a "microcosm" of the state. The Guarantee Clause in Article IV, Section 4 promises every state a republican form of government. A republic is not a pure democracy. It is a system where the people elect representatives who then deliberate and govern. Whether districts are safe or competitive, the people still vote. Their votes still count. The constitutional standard is not maximum competition or proportional representation-it is that the government remain republican, not tyrannical or hereditary. As Madison wrote in Federalist No. 57: "The House of Representatives is so constituted as to have an immediate dependence on, and an intimate sympathy with, the people." That dependence comes from the ballot box, not from the shape of the lines. If the people are unhappy with the map, they can vote out the legislators who drew it. That is the republican remedy-and the Founders trusted it.

A Better Way: Federalism and Competition

If you dislike partisan gerrymandering, the constitutional remedy is clear: let the states compete. States that abuse partisan line-drawing will eventually face a backlash from voters who want fairer representation. States that adopt independent commissions-as several have-become laboratories of reform. If the federal government wants to encourage such reform, it can provide incentives through the tax code or through conditions on federal grants. But it should never impose a one-size-fits-all mandate that would destroy the diversity of election practices that federalism protects. The Supreme Court's decision in Rucho was not an endorsement of gerrymandering. It was a recognition that the Constitution leaves these questions to the people and their elected representatives. That is the republican principle. And it is worth defending. We do not need nine unelected judges to draw our maps. We need a citizenry that understands the difference between a republic and a democracy-and demands representation that is local, accountable, and free from the centralized planning that has already done so much damage to our economy and our culture. Gerrymandering is not the enemy of our republic. The enemy is forgetting what a republic is.