Shortly after the signing of the Constitution, a Mrs. Powell of Philadelphia asked Benjamin Franklin, “Well, what have we got?” Without hesitation, Dr. Franklin answered, “a republic, if you can keep it.”
With seven words, spoken outside the Pennsylvania State House in the late summer of 1787, Benjamin Franklin defined the United States’ new form of government — a republic guaranteed by a Constitution — and alluded to the challenge of protecting and preserving it.
That question, “what have we got?”, remains at the center of American political debate 232 years later. Do we have a republic or do we have a democracy? In March of this year, during a day of arguments in two redistricting cases (Rucho v. Common Cause and Lamone v. Benisek), Supreme Court Justice Brett Kavanaugh asked a question that went right to the core of almost all recent partisan gerrymandering litigation: “Do you think the Constitution requires proportional representation or something close to proportional representation?” It echoes Mrs. Powell’s.
Democrats and their liberal allies want to guarantee that a party’s share of the congressional vote within a state should roughly correlate with the number of congressional seats won by that party. But they have a major problem: America was not founded as a democracy, and the concept of proportional representation is alien to the Constitution.
James Madison captured the Founders’ views in “Federalist 10”: “Democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths.” They reasoned that individual rights, whether of the majority or minority, were best protected if the nation’s political majorities had to represent multiple segments of the country rather than a few heavily populated areas. To that end, they made sure our government would not be founded on majority rule.
It is this principle, this foundational concept of republican and not democratic governance, and our Founders’ inherent aversion to any kind of majoritarian representation, that likely motivated multiple Justices to repeatedly ask about proportional representation in Rucho and Lamone.
The justices rightly zeroed in on this issue of proportional representation. Countless liberal metrics and legal tests have paraded past the justices over the years, but they, and the academic literature supporting them, ultimately rely on a single underlying assumption that proportionality is the ideal by which constitutionality should be measured. But the Constitution says no such thing.
The liberal justices on the court, unsurprisingly, pushed back against that notion. They were joined shortly afterward by liberal academics publishing a flurry of articles and blog posts arguing the same. Their shock at the idea their tests are motivated or supported by a desire for proportionality amount to the same level of shock as Captain Renault’s when he discovered there was gambling at Rick’s in “Casablanca.”
Many liberals see our republican institutions as archaic obstacles constructed by those who could not know our contemporary challenges. But the facts undercut that belief. For example, a recent population growth estimate forecasts half the country will live in only eight states by 2040. Liberals lamented that only 16 senators will represent half the country, but this isn’t new to our republic.
Population disparities between the states were a present concern even in 1787. Three years after the signing of the Constitution, the 1790 Census showed that 50.2% of the total population (and 49.5% of the free population) of the U.S. lived in just four states: Virginia (19.2%), Pennsylvania (11.2%), North Carolina (10.1%), and Massachusetts (9.7%).
To address the population disparity issue, the Founders created two chambers in Congress. The Senate, whose members would come equally from each state, would protect the many states from laws fashioned to favor a few. The House, with members allocated based on population, would give more representation to larger states. The Founders did nothing to mandate or incentivize any kind of proportional representation within a state’s congressional delegations.
Kavanaugh’s question struck at the heart of what the Democrats and their liberal allies are arguing and at the founding constructs of American government. He and his fellow justices know, as we all should, that the Constitution guarantees a republic to all Americans — if the court will let us keep it.
Adam Kincaid is executive director of the National Republican Redistricting Trust. The NRRT filed an amicus brief in Rucho v. Common Cause in support of legislative defendants.
