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

through politics? By definition, disfranchised persons do not, as a rule, vote on whether they should get the vote in future elections, and incumbent politicos have attenuated incentives to protect the interests of nonvoters. In situations of gross malapportionment, the political power structure is itself part of the problem and thus cannot be relied upon to be part of the solution. In Baker v. Carr , Justice Tom C. Clark’s concurring opinion stressed that the citizenry of Tennessee had no effective way to combat the state’s gross malapportionment.In particular, the state lacked an initiative process whereby a statewide majority of disgruntled voters could have changed the corrupt status quo. Electoral reform in Tennessee perversely required assistance from the very state legislature whose leaders were the chief architects and beneficiaries of the state’s rotten system of vote-counting. Thus, in right-to-vote cases such as Harper and malapportionment cases such as Baker and Reynolds , relief needed to come from outside the voting system itself—from the federal government as the proper guarantor of state republican government. In gerrymandering situations, by contrast, the political system adequately polices itself, and thus there is less pressing need for bold judicial initiatives.
    None of the considerations cataloged in the preceding paragraphs are explicitly laid out in any clear constitutional clause. Nevertheless, they flow from a careful understanding of the written and unwritten Constitution as a whole—from the implicit premises of the document; from the revitalized ideals of republicanism enacted in the amendment process during Reconstruction; from the matrix of institutions set up by the Constitution; from America’s actual lived practices of voting and conducting elections; and from actual judicial doctrine rooted, by and large, in a proper vision of Article III “judicial Power.”
“the supreme Court”
    IT REMAINS TO ASK the biggest set of questions about Article III “judicial Power”: In general, how much weight, and what kind of weight, should today’s Article III judges in the proper exercise of their “judicial Power” give to past Article III exercises of “judicial Power”? In particular, when and how should the Court overrule itself? These questions are particularly momentous because many of the most famous decisions of the modern era—for instance, Brown v. Board of Education, Mapp v. Ohio, Gideon v. Wainwright, Miranda v. Arizona, Roe v. Wade , and Lawrence v. Texas —are rulings that themselves broke with prior precedent and/or cases that prominent critics have urged overruling.
    In seeking to answer the biggest questions about when the Supreme Court should overrule itself, some self-described adherents of the written Constitution as originally understood have offered accounts of precedent’sproper place that largely begin and end outside the text. Justice Scalia is the most famous example. Both on and off the Court—most famously in a 1989 published lecture on his philosophy of “originalism”—Scalia has argued that judges should generally follow the Constitution’s original public meaning. Invoking the vision of John Marshall, Scalia has reminded us that the Constitution is America’s “paramount law” and that this law has “a fixed meaning.” But apparently Scalia also believes that judges need not follow this paramount law, whose meaning was fixed by its original understanding, when this paramount law sharply contradicts settled precedent. Any other approach would be impractical, he has argued. 17
    Huh? If the touchstone here is pure practicality, it is hard to see why pure practicality cannot also be the touchstone for all issues of constitutional interpretation across the board—text and original understanding be damned! Conversely, if Scalia believes that as a judge he is generally obliged to follow the supreme law, and that this law is the written Constitution