At Liberty Law Blog, Ken Masugi: Justice Thomas: Mr. Republican. From the introduction:
Once again Justice Clarence Thomas has given originalist jurisprudence its most robust defense through his revival of an obscure part of the U.S. Constitution.
In 2010, in McDonald v. Chicago, he had protected the right to individual gun ownership by invoking the Fourteenth Amendment’s Privileges or Immunities Clause. Now he has concurred in the decision in Evenwel v. Abbott (2016), which unanimously affirms the state of Texas’ use of population (rather than being required to use eligible voters) as the basis for devising electoral districts.
Thomas’ bold concurring opinion, reviving as it does Article IV’s guarantee that each state shall have a republican form of government, opens up a vast field of possibilities for thinking about apportionment but also about free government generally. His aim in directing us to this clause is ultimately to build a more powerful case against the unconstitutional administrative state, the suppressor of separation of powers, federalism, and basic republican principles. Even more provocative is the basis he sees for the Republican Government Guarantee Clause: the Declaration of Independence.
For a thoughtful different view, Michael Dorf: Justifying One Person One Vote.
Posted at 6:02 AM