Reconstituting representation: the supreme court and the rhetorical controversy over state and congressional redistricting
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Date
2009-05-15
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Abstract
Constitutive rhetoric focuses on the idea that in times of historical crisis, speakers
possess the ability to repair the language of the community and reshape the identity of the
community. This dissertation relies upon the concept of constitutive rhetoric to examine
the Supreme Court’s reapportionment and redistricting decision. By employing
constitutive rhetoric, the Supreme Court reacts to the crisis of representation because of
malapportionment and redistricting to transform our Constitutional republic to a
Constitutional democracy and, further, to debate competing visions of representation and
democracy necessary to sustain political life and the democratic experience.
Chapter I offers readers a literature review on constitutive rhetoric, a literature
review on reapportionment and redistricting, and presents readers with an outline of the
dissertation. Chapter II provides a brief history of redistricting in the United States since
Colonial times, the development of apportionment and redistricting law at the state court
level, and the Supreme Court’s invention of a rhetorical tradition in apportionment and
districting law before the Reapportionment Revolution. In the last section of Chapter II, I argue that the Pre-Revolution Supreme Court cases weakened the authority of the
rhetorical tradition of judicial deferment. Chapter III examines the Supreme Court’s
decision in Baker v. Carr, which reconstitutes the authority of the judiciary in
apportionment and redistricting law by redefining the meaning of voting rights and the
political questions doctrine, as well as reconceptualizing the law behind voting rights.
Further, this chapter outlines the new role of the judiciary in American society and the
ethos of judicial restraint that is to guide apportionment and redistricting cases.
Chapter IV examines the development of the new rhetorical tradition in
apportionment law from the Reapportionment Revolution cases of Gray v. Sanders,
Wesberry v. Sander, Reynolds v. Sims, and the rest of the Supreme Court cases form the
1960s. In this new rhetorical tradition, the Supreme Court reconstitutes the American
republican to create a legal and moral American democracy, a form of government that
rests on the development of the democratic experience and the expansion of the right to
vote at the local, state, and federal level. Chapter V examines the Supreme Court cases
during the 1970s and the 1980s where, because of their ideological divisions, the Justices
offer the American people competing visions of representation and democracy in an
attempt to gain interpretive dominance for their visions. Finally, Chapter VI examines the
Supreme Court’s decisions from the 1990s and 2000s. In these decisions, the Justices
debate the best means to achieve racial reconciliation through apportionment and
redistricting law and the best formation of democracy to secure that reconciliation.
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Keywords
Constitutive Rhetoric, Legal Rhetoric, Democracy, Representation