An Aggressive Congress and Further Shrinking Federalism
By Marion Edwyn Harrison (07/22/07)
There is pending in Congress legislation introduced in the House of Representatives by various California Democratic Members and, earlier this year, jointly by a Tennessee Democrat and a Tennessee Republican Member. If enacted into law and held constitutional in the almost inevitable litigation which would follow what would any such legislation do? That of course, would depend upon precisely which bill were enacted. In general, the effort would insinuate the Federal Government, meaning Congress, into the business of regulating a big chunk of State activity concerning districting and redistricting of Congressional districts.
The bill which probably has attracted the most attention was introduced by twenty-two California Democrats, salubriously entitled the Redistricting Reform Act. (So much Congressional legislation, other than appropriations, has “Reform” in the title - PR at work and at play.) More specifically, it would prohibit a State legislature, even though the legislature complied 100% with its State Constitution, from redistricting its United States House of Representatives seats more often than once every ten years. It would be effective following the usual decennial census, next to occur in 2010, for reapportionment effect in the November, 2012 elections.
Behind the impetus for this “Reform” Act is California liberal Democratic dissatisfaction with Republicans and others in California, particularly popular GOP Governor Arnold Schwarzenegger, with respect to the composition of Congressional districts - and, irrelevantly, with respect to lots of other things, including his personal popularity. Perhaps some redistricting in Georgia and Texas also has irritated some liberals in the House of Representatives although nobody from either State is an original sponsor of the proposed Act.
Undoubtedly there are both theoretical and pragmatic arguments against redistricting more often than once in ten years. A theoretical argument is that there should be known continuity in the demarcation of a Congressional district. Political scientists doubtless could offer more theoretical arguments. There are two, maybe three, principal pragmatic arguments. (1) Population distribution doesn’t change so fast. (2) Constituents grouped together in a district should not be bothered, confused or disturbed by frequent switching of them from one Congressman’s district to another. (3) At least arguably, some mid-decennial redistricting is, or appears to be, politically motivated. As to (3), of course, most redistricting is politically motivated. Each political party wants as many safe or reasonably safe seats as possible; Blacks like heavily Black populations; incumbents like easy incumbency.
My own twofold thought is that for a variety of reasons, theoretical and pragmatic, redistricting, when necessary at all, suffices once every ten years, seasonably following the decennial census.
However, Congress has no legitimate business mandating to the States on this subject. The Constitution, Article I, § 1, clearly does not envision, although it does not per se prohibit, redistricting more often than ten years. Article I, § 8, enumerates a bundle of Congressional powers. Mandating the frequency of redistricting of Congressional seats is not one of them.
As usual, this Commentary is not a law review note or other legal critique. However, it is worth noting that Congressional interference with the historical State prerogative of redistricting is a further denigration of that federalism which the Founding Fathers envisioned and thought they had ordained. The fact that the Feds already have legislated as to civil rights matters in the Voting Rights Act and otherwise does establish a precedent of sorts but does not necessarily justify further intrusion.
Not every problem in a State - indeed, fewer than Congressional and bureaucratic Washington would admit - is better resolved by Federal intervention. Furthermore, one might argue that Congress and the bureaucracy already are overwhelmed in attempting to handle numerous major problems which indisputably are Federal that are sufficient at least to defer further chopping away at federalism. Space precludes listing all those.
Marion Edwyn Harrison is President of, and Counsel to, the Free Congress Foundation
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