Larry Alexander is one of the most creative, penetrating, and wide-ranging legal theorists working today. This short essay, prepared as a tribute for a special issue of the APA Newsletter on Philosophy and Law, aims to convey a flavor of his work by introducing, and causing some trouble for, just a few of his more heterodox and provocative positions. The principal critical target of the essay is Alexander’s contention (a contention that he has pressed both alone and with Saikrishna Prakash) that extreme partisan gerrymandering does not violate the U.S. Constitution. The most persuasive grounding for the unconstitutionality of (extreme) partisan gerrymanders, I argue, is that partisan advantage is a consideration that legislators may not properly take into account (or may not weigh too heavily) when crafting electoral districts. This is a view about what inputs to certain types of legislative decisionmaking are impermissible, and does not rest upon, or imply, any views about what electoral rules or outputs are constitutionally optimal or required. Simply put, Alexander and Prakash never adequately rebut this particular, and common, grounding of the orthodox view that partisan gerrymandering can be unconstitutional.
Circling outward, the essay then considers three other striking Alexanderian positions that lend support to his position on partisan gerrymandering but are of substantial independent interest: that the constitutionality of given state action never depends upon the purposes that animate it; that there are no such things as legal principles; and that constitutional interpretation is necessarily the activity of trying to discern the meaning that the Constitution’s authors intended to convey by means of the language they used. The essay casts doubt on each of these claims.
gerrymandering, Larry Alexander, legal principles
Berman, Mitchell N., "Alexander's Genius" (2012). Faculty Scholarship at Penn Law. 2342.