John Hart Ely

Legislative and Administrative Motivation in Constitutional Law

John Hart Ely*

Standing to challenge pro-minority gerrymanders

I can verify this much: the underlying issue here, the constitutionality of pro-minority gerrymandering2 shaping a congressional or other legislative district in order to maximize the chances of electing a black, Latino, or other minority representative3 is, if not a treacherous quagmire,4 at least extremely difficult.5 The subissue to which the epigraph refers, however, that of standing to challenge such gerrymanders, strikes me as not seriously contestable,6 a fact that would hardly

The Wages of Crying Wolf

Let us not underestimate what is at stake: Having an unwanted child can go a long way toward ruining a woman’s life. And at bottom Roe signals the Court’s judgment that this result cannot be justified by any good that anti-abortion legislation accomplishes. This surely is an understandable conclusion—indeed it is one with which I agree—but ordinarily the Court claims no mandate to second-guess legislative balances, at least not when the Constitution has designated neither of the values in conflict as entitled to special protection. But even assuming it would be a good idea for the Court to assume this function, Roe seems a curious place to have begun. Laws prohibiting the use of “soft” drugs or, even more obviously, homosexual acts between consenting adults can stunt “the preferred life styles”1 of those against whom enforcement is threatened in very serious ways. It is clear such acts harm no one besides the participants, and indeed the case that the participants are harmed is a rather shaky one. Yet such laws survive,2 on the theory that there exists a societal consensus that the behavior involved is revolting or at any rate immoral.3 Of course the consensus is not universal but it is sufficient, and this is what is counted crucial, to get the laws passed and keep them on the books. Whether anti-abortion legislation cramps the life style of an unwilling mother more significantly than anti-homosexuality legislation cramps the life style of a homosexual is a close question. But even granting that it does, the other side of the balance looks very different. For there is more than simple societal revulsion to support legislation restricting abortion:4 Abortion ends (or if it makes a difference, prevents) the life of a human being other than the one making the choice.