Reconstituting representation: the supreme court and the rhetorical controversy over state and congressional redistricting



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Constitutive rhetoric focuses on the idea that in times of historical crisis, speakers possess the ability to repair the language of the community and reshape the identity of the community. This dissertation relies upon the concept of constitutive rhetoric to examine the Supreme Court?s reapportionment and redistricting decision. By employing constitutive rhetoric, the Supreme Court reacts to the crisis of representation because of malapportionment and redistricting to transform our Constitutional republic to a Constitutional democracy and, further, to debate competing visions of representation and democracy necessary to sustain political life and the democratic experience. Chapter I offers readers a literature review on constitutive rhetoric, a literature review on reapportionment and redistricting, and presents readers with an outline of the dissertation. Chapter II provides a brief history of redistricting in the United States since Colonial times, the development of apportionment and redistricting law at the state court level, and the Supreme Court?s invention of a rhetorical tradition in apportionment and districting law before the Reapportionment Revolution. In the last section of Chapter II, I argue that the Pre-Revolution Supreme Court cases weakened the authority of the rhetorical tradition of judicial deferment. Chapter III examines the Supreme Court?s decision in Baker v. Carr, which reconstitutes the authority of the judiciary in apportionment and redistricting law by redefining the meaning of voting rights and the political questions doctrine, as well as reconceptualizing the law behind voting rights. Further, this chapter outlines the new role of the judiciary in American society and the ethos of judicial restraint that is to guide apportionment and redistricting cases. Chapter IV examines the development of the new rhetorical tradition in apportionment law from the Reapportionment Revolution cases of Gray v. Sanders, Wesberry v. Sander, Reynolds v. Sims, and the rest of the Supreme Court cases form the 1960s. In this new rhetorical tradition, the Supreme Court reconstitutes the American republican to create a legal and moral American democracy, a form of government that rests on the development of the democratic experience and the expansion of the right to vote at the local, state, and federal level. Chapter V examines the Supreme Court cases during the 1970s and the 1980s where, because of their ideological divisions, the Justices offer the American people competing visions of representation and democracy in an attempt to gain interpretive dominance for their visions. Finally, Chapter VI examines the Supreme Court?s decisions from the 1990s and 2000s. In these decisions, the Justices debate the best means to achieve racial reconciliation through apportionment and redistricting law and the best formation of democracy to secure that reconciliation.