America's Unwritten Constitution: The Precedents and Principles We Live By by Akhil Reed Amar Page A

exists a conceptual space between the abstract meaning of the written Constitution (in the domain of interpretation) and the doctrinal sub-rules promulgated and enforced by courts (in the domain of implementation). This space arises because of institutional considerations connected to the basic features of federal courts. When the Constitution goes to court, it needs to be translated into rules that courts qua courts can properly enforce. In this process of translation—when the supreme law of the terse text becomes the detailed court-law of judicial doctrine—areas of overinclusion and underinclusion arise.
    These areas form an important part of America’s unwritten Constitution. As with other elements of this unwritten Constitution, these areas are not clearly mapped in the document’s express words—and yet (as with other elements) they exist in close proximity to the document. In one sense, judicial sub-rules by definition range beyond and fall short of the best interpretation of the written Constitution, if the document is read in an institutional vacuum. In another sense, however, the document envisions and contemplates such areas, for they arise as a result of features built into the text itself—the affirmative scope and limitations on “judicial Power,” the essential structural attributes of federal courts, the need for “one supreme Court” to supervise and suitably guide all “inferior” federal courts, and the intricate institutional relationships between the federal judiciary and other institutions created or contemplated by the Constitution.
    In the case of one-party gerrymandering, whatever judicial underprotection now exists is largely harmless, because other features of modern American government have limited the potential damage. Any party seeking to maximize the number of seats it can win must minimize the number of “wasted votes” it receives—that is, votes above the necessary victorythreshold of 50 percent plus one in any district and votes going to losing candidates. In other words, optimal vote maximization means that almost every vote a party gets must go to a winning candidate (because all votes going to losers are ineffectual), and that no party candidate should win by a landslide. (If any candidate does win big, then all the extra votes above the 50 percent mark are “wasted” votes that could have gone to help some other party candidate win in some other ingeniously drawn district.) But this mathematical reality means that any successful partisan gerrymander will need to tack very close to the political wind, a highly dangerous maneuver. If some modest external event arises after district lines are drawn—a party scandal, an economic downturn, a shift in district demographics—then a party could end up losing a slew of close races rather than winning them all. Parties are understandably reluctant to play the game too fine, and this reluctance makes it difficult for one party to consistently impose “wasted” votes on the other party without suffering lots of “wasted” votes itself.
    Moreover, each major party typically includes powerful legislative incumbents, and every incumbent prefers to win by a landslide rather than a squeaker. Landslides facilitate fundraising and help launch future campaigns for still higher office. But landslides also waste votes, from the party’s point of view. Hence, both one-party gerrymanders and incumbent-protective gerrymanders may be troubling in theory, but in practice they tend to tug hard in opposite directions, resulting in district maps that do not seriously dishonor the deep principles of republican government. Judicial intervention is thus largely unnecessary, because the political system regulates itself tolerably well with regard to gerrymandering. 16
    This was not true of the 1960s right-to-vote and malapportionment cases. Where certain persons are literally disfranchised, how are they supposed to solve the problem themselves