TOM DELAY'S CONSTITUTIONAL UNDERSTANDINGS

From Tom Delay's interview on fair and balanced Fox News Sunday:

SNOW: All right. Let's switch to another topic. Texas — there is an imbroglio about redistricting. Republicans want to change the map because their Republican majority is substantial in your home state.

But there's a question. These same Republicans, a couple of years ago, agreed to a redistricting, or at least, in courts, got involved. Why should Republicans get another bite at the apple?

DELAY: Well, we haven't had the first bite. We're supposed to, by Constitution, apportion or redistrict every 10 years. The state legislature in Texas couldn't do it in the last legislature, and three judges did it and they did a very poor job, as evidenced that the fact that we have a minority of Republicans in our congressional delegation.

What — you know, we in Texas, Tony, have prided ourselves on honor, duty and responsibility. Unfortunately, the Democrats in the state legislature don't understand honor because they're violating their oath of office to support the United States Constitution. They don't understand their duty, which the Constitution calls for in redistricting. And they don't want to accept responsibility for it, so they ran.

We're insisting that the Constitution be upheld, and we feel very confident that if the state legislature does its duty and redistricts, then we will end up with a majority of Republicans in the congressional delegation.

For some reactions, see Jim Joyner ("The Democrats don't even need to come up with straw men if this is the best Republicans have to offer.") and Josh Marshall ("Persistent, chronic up-is-downism"). It should be a bit of an embarrassment for Mr. Delay that he can't really point to a constitutional text to support his claim that the U.S. Constitution requires state legislatures (as opposed to state governments) to redistrict every ten years. He is, after all, a person who has taken it upon himself to provide a constitutional education to visitors to his web site.

Delay has a stronger case that his critics claim, I think, though; it's just not a case based on the bare constitutional text. It is undoubtedly part of current Republican party constitutional understandings that judges are too powerful -- not with respect to all issues, of course, like federalism, although that criticism may come, too, if the federal courts include CA marijuana policy under the rubric of federalism, as Randy Barnett hints at here. The Republicans even have a plank in their platform attacking a Supreme Court decision (Roe v. Wade), and, in general, "cussing the court" should rank as one of the main gestures of the contemporary Republican party.

Moreover, Republicans argue that majoritarian institutions like state legislatures are to be preferred over non-majoritarian institutions for the resolution of many kinds of disputes, especially those that have to do with race (except affirmative action) and criminal justice (such as mandatory minimums). And a little more tenuously, think back to the fact that the arguments in favor of the outcome in Bush v. Gore had to do with the Florida Supreme Court usurping powers that were granted to the state legislature. I'm not asserting an exact analogy here, just the fact that there is a similar kind of argument in play, regardless of whether or not you buy the particular arguments in BvG.

So Tom Delay really is tapping into a kind of established constitutional understanding that is prominent among Republicans. His performance on Sunday was a classic example of Delay's desire to smear Democrats as unpatriotic (and not just wrong), and it's probable that the constitutional arguments were wholly instrumental to that intention. In addition, I doubt that he has thought about the approach to constitutional interpretation implied by his remarks (i.e., not textually anchored! not anchored in "original intent" explicitly!). Finally, it would be hard to sustain the argument that Democrats in the Texas legislature took an oath to uphold the Constitution as Republicans understand it and not as Democrats understand it. Still, I don't think it's a stretch to see Delay as advancing genuine constitutional arguments here. They might not hold up in court -- unless the Republicans are able to restructure the judiciary, that is!