859 Partisan Gerrymandering As a Safeguard Of
PARTISAN GERRYMANDERING AS A SAFEGUARD OF FEDERALISM Franita Tolson* I. INTRODUCTION In 1954, Herbert Wechsler argued that congressional statutes that encroach on state power should not be subject to judicial review because the states’ role in the composition of the federal government is sufficient to protect the institutional interests of the states from federal power.1 Writing almost fifty years later, Larry Kramer agreed with Wechsler’s basic point, but observed that these structural safeguards do little to protect the governing prerogatives of the states.2 These mechanisms do not explain the continued success of American federalism, according to Kramer, because mediating institutions such as political parties and public interest organizations link politicians at every level of government and undermine the federalism originally envisioned by the Founders.3 These institutions destabilized the political competition between the levels of government that the Founders had hoped would protect the states from being consumed by the federal government.4 Kramer concluded that, despite this link between politicians at every level of government, the decentralized American party system provides a solution to the problem of mass politics that deprives Wechsler’s argument of much of its force—that political parties protect the states by making national party officials politically dependent on state and local party organizations.5 * © 2010 Franita Tolson, Assistant Professor, Florida State University College of Law. For helpful comments and suggestions, I would like to thank Lisa Bernstein, Charlton Copeland, Adam Cox, Robin Craig, Kareem Creighton, Heather Gerken, Tara Grove, Richard Hasen, Samuel Issacharoff, Michael Kang, Holning Lau, Wayne Logan, Dan Markel, Jide Nzelibe, J.B.
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