National Unity, Group Conflict, and the Constitution

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NATIONAL UNITY, GROUP CONFLICT, AND THE CONSTITUTION

Writing on behalf of the Supreme Court in shaw v. reno (1993), Justice sandra day o'connor complained that race-sensitive reapportionment schemes reinforce "the perception that members of the same racial group … think alike, share the same political interests, and will prefer the same candidates at the polls." In her view, "Racial gerrymanders, even for remedial purposes, may balkanize us into competing racial factions." She accordingly concluded that the Constitution prohibits states from drawing bizarrely shaped legislative districts on the basis of racial criteria.

O'Connor's argument highlights some basic principles of American democracy. Democracy cannot be reduced to majoritarianism. In a purely majoritarian system, 40 percent of the people can lose 100 percent of the time. That would be unfair; true democracy requires that government speak on behalf of the whole people, rather than a mere part of the people—even if the part is a majority.

Nevertheless, American democracy relies heavily on majoritarian elections. These elections are likely to be a satisfactory means for implementing democracy only if one of two conditions holds. The first possibility is that interests might vary greatly from person to person, so that everybody is in the majority on some issues. If so, everybody would occasionally benefit from majoritarian procedures.

The second possibility is that citizens might take an interest in one another. They might, in other words, place an affirmative value upon the happiness of their fellow citizens, including citizens in the minority. If so, members of the minority would enjoy virtual representation through the concerns of the majority.

Both conditions are put in jeopardy by enduring, cohesive political factions. When such factions exist, interests vary from group to group, rather than from person to person. As a result, members of minority groups may find that they are consistent losers in a polarized political process. Moreover, people in one faction are likely to be hostile to those in competing factions.

Shaw thus relied on sound premises. National unity is a structural principle of American democracy, much like federalism or the separation of powers. The constitutional aspiration to establish democratic government requires that the state presume Americans can best flourish if they live and work together. Laws that "balkanize [Americans] into competing factions" may thus be unconstitutional even if they meet with the approval of minority groups. Indeed, when rival factions dislike or distrust one another, they may find separation more appealing than cooperation.

As the Shaw Court recognized, racial divisions—and especially the divisions between black and white Americans—have always been the most potent source of political factionalism in the United States. Nevertheless, although Shaw relied on sound principles, its application of them was dubious. The Court treated racial gerrymanders as though they segregated citizens on the basis of race. In fact, though, the districts reviewed in Shaw were among the most integrated in America.

Shaw 's antisegregation rhetoric would have been more appropriate in board of education of kiryas joel village school district v. grumet (1994). Kiryas Joel involved a school district gerrymandered so that a village inhabited solely by Hasidic Jews could run its own school system. The Hasidim had previously sent their children to the neighboring Monroe-Woodbury school district, but the Hasidic children had been teased and mistreated. Since neither community liked the other, both were happy with the segregated district.

The constitutional commitment to national unity, however, forbids the state from endorsing this kind of separatist impulse. The Court rightly held the Kiryas Joel school district unconstitutional under the establishment clause. Ina concurring opinion, Justice john paul stevens called attention to the fact that New York had "affirmatively support[ed] a religious sect's interest in segregating itself." Stevens rightly said that it would have been better for New York to "further the strong public interest in promoting diversity and understanding in the public schools."

Christopher L. Eisgruber
(2000)

(see also: Electoral Districting; Religious Liberty.)