In a recent blog post, Justice Thomas: Mr. Republican, Ken Masugi shows why Justice Clarence Thomas “has given originalist jurisprudence its most robust defense through his revival of an obscure part of the U.S. Constitution.” The blog reviews Justice Thomas’ concurrence in Evenwel v. Abbot (2016). The case involves basic principles of governance, representation, and elections. The question before the Court was whether the Court’s gloss on the Constitution’s Equal Protection Clause requiring “one person, one vote” required legislative districts be designed with equal numbers of registered voters rather than equal populations. The majority opinion concluded that the Equal Protection Clause did not require legislative districts be apportioned in proportion to registered voters.
Justice Thomas, in his concurrence, shows the flaw in the “one person, one vote” principle of the Court from history and logic, preferring instead to base his decision on Article IV, Section 4 of the Constitution, which guarantees every state in the union a republican form of government. Since there is no one definitive criteria for apportioning representation for a republic in the Constitution, Thomas concludes the states are free to apportion their districts based on population.
While Mr. Masugi is helpful in highlighting Justice Thomas’ new approach to voting rights, there are deeper issues than simply the “one person, one vote” rule. The case itself raises intriguing questions regarding governance and the right of citizens to vote in a free republic. It also shows confusion caused by our overriding commitments to “democracy.” What rights to vote does our “democracy” grant? What obligations does our “democracy” impose on our elected officials? Who does the elected official represent?
These confusions arise because we have superimposed a “democratic” mindset on what was designed as a constitutional republic. As Justice Thomas points out in his concurrence, not every governing official of the united States was originally intended to be popularly elected. Senators were originally selected by the state legislatures. And the President is still selected by an electoral college. Even today, we impose minimum age requirements on voting rights. Yet, even though a four year old cannot vote, he is still “represented” by his Congressman. He is therefore represented by an individual he had no voice in selecting. In this “one person, one vote” will never fit.
The most disturbing aspect of the majorities’ approach and the “one person, one vote” principle is that the justices have completely misconstrued the purpose and goal of the united States.
As the Framers of the Constitution and the Fourteenth Amendment comprehended, representatives serve all residents, not just those eligible or registered to vote. See supra, at 8– 12. Nonvoters have an important stake in many policy debates—children, their parents, even their grandparents, for example, have a stake in a strong public-education Opinion of the Court system—and in receiving constituent services, such as help navigating public-benefits bureaucracies. By ensuring that each representative is subject to requests and suggestions from the same number of constituents, total population apportionment promotes equitable and effective representation. See McCormick v. United States, 500 U. S. 257, 272 (1991) (“Serving constituents and supporting legislation that will benefit the district and individuals and groups therein is the everyday business of a legislator.”).
In this the majority is completely wrong. The justices view government much as our popular media culture does, as a vending machine with each elected representative as a local candy man to bring their districts and constituents goodies. This view of government is contrary to the principles set forth by the Founding Fathers. Our Founding Fathers declared that government existed to preserve the God given rights of its citizens. The Declaration of Independence makes this absolutely clear.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.—That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,—That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
Justice Thomas rightly cited William Blackstone on this very point. “[T]he principal aim of society is to protect individuals in the enjoyment of those absolute rights [of life, liberty, and property], which are vested in them by the immutable laws of nature.” Government, our government, exists to protect our stuff, not give our stuff away. Governmental benefits violate the original design of our Constitution in that it redistributes wealth. That our highest court now thinks our government exists for such purposes highlights the flaw in their deliberations.
This then is the flaw. In the Court’s mind, government exists to provide benefits. Access to government benefits is now the inalienable right granted by our federal government and the Court. This colors how we view voting rights. The vote is the voice we need to gain access to those government benefits. We want popular government, popular in that it provides us benefits. And we need the vote to make sure our voice is heard in Washington so it will give us what we want.
If, however, the goal of government is seen as protecting God given rights as originally intended, each individual’s voice in the fray of pandering for representation is less important. It does not matter to me if I have a vote on the election of my representative as long as that representative will devote his efforts to protecting the God given rights of all citizens. If I have nothing to gain over my fellow citizen by the election of my representative, I don’t care.
Justice Thomas’ opinion would set the philosophy of government on a new and correct course. Each state must have a republican form of government. As Thomas describes it, that government should designed so that the people’s representatives guard against the usurpation of the rights of its citizens. There is no set process in the Constitution for electing representatives within each state. States should be free to pursue the election of officials that guard the rights granted by God not pander for benefits granted by government.