Dividing the Body Politic

University of Chicago Legal Forum Volume 2023 Article 1 2024 Dividing the Body Politic James A. Gardner Follow this and additional works at: https://chicagounbound.uchicago.edu/uclf Part of the Law Commons Recommended Citation Gardner, James A. (2024) "Dividing the Body Politic," University of Chicago Legal Forum: Vol. 2023, Article 1. Available at: https://chicagounbound.uchicago.edu/uclf/vol2023/iss1/1 This Article is brought to you for free and open access by Chicago Unbound. It has been accepted for inclusion in University of Chicago Legal Forum by an authorized editor of Chicago Unbound. For more information, please contact . Dividing the Body Politic James A. Gardner† ABSTRACT It has long been assumed in large, modern, democratic states that the successful practice of democratic politics requires some kind of internal division of the polity into subunits. In the United States, the appropriate methods and justifications for doing so have long been deeply and inconclusively contested. One reason for the intractability of these disputes is that American practices of political self-division are rooted in, and have been largely carried forward from, premodern practices that rested originally on overtly illiberal assumptions and justifications that are difficult or impossible to square with contemporary commitments to philosophical liberalism. The possibility of sorting things out in a rational way—long the object of legal and political science scholarship in the field—has recently been greatly complicated by an unexpected resurgence of various forms of illiberalism, especially populist authoritarianism, a conception of popular self-governance that rejects liberal understandings of democratic processes and politics. This new political alignment is especially complicating because liberals and illiberals disagree profoundly about the nature of the body politic, its susceptibility to division, and the significance and proper goals of such division. This Article traces the evolution of American practices of political selfdivision from premodernity through the present, explores how present political trends affect longstanding disputes over practices of legislative districting, and concludes with a brief examination of some possible ways of establishing a workable modus vivendi. I. INTRODUCTION No human society understands itself as a single, undifferentiated whole. Federal states divide themselves into self-governing provinces or regions. Unitary states divide themselves into administrative sub† Bridget and Thomas Black SUNY Distinguished Professor of Law and Research Professor of Political Science, University at Buffalo Law School, The State University of New York. An earlier version of this paper was presented as the Keynote Address at a conference on “Borders and Boundaries” at the University of Chicago Law School on November 4, 2022. I am grateful to the editors of the Legal Forum for inviting me, and offering me the opportunity to rethink a considerable body of prior work. I thank Tico Taussig-Rubbo, Matt Steilen, and Paul Linden-Retek for valuable comments and leads to sources, and Andrew Henry for outstanding research assistance. 1 2 THE UNIVERSITY OF CHICAGO LEGAL FORUM [2023 units. Democracies divide themselves into election districts. Even the smallest traditional societies divide themselves for many purposes into clans or family groups.1 Assuming, for the moment, that the successful practice of democracy requires, or is at least greatly facilitated by, division of the body politic into election districts, the question I wish to address here is: how ought these lines to be drawn? How should a society divide itself for the purpose of practicing democratic politics? This is a question that has long been asked, and vigorously debated, by lawyers, political scientists, legislatures, courts, districting commissions, and citizens themselves. The reasoning by which the question is addressed, however, invariably proceeds along a well-worn path characteristic of the practice of institutional design. It begins from the premise that how we divide ourselves is entirely a matter of choice. Choices, in the domain of institutional design, should be rational,2 and the rational way to narrow down a wide range of options is to choose some set of preferred policy goals, and then identify the design path most likely to achieve them. This way of thinking about how to divide ourselves has spawned a vast literature evaluating, critiquing, and proposing criteria and methods of legislative districting. I want to proceed differently here, by posing a question that most of the literature simply assumes away: Do we, in fact, have choices—or at least legitimate choices—about how to divide ourselves for the purpose of practicing democratic politics? If so, under what constraints? Answering these questions in turn requires addressing important antecedent ones: when we divide ourselves, what exactly are we dividing? Is that entity, which I shall call here the body politic, reasonably viewed as divisible, and if so, along what dimensions, for what legitimate purposes, and with what potential consequences? Until very recently—2016, say, or perhaps 2020—any attempt to answer these questions could rely confidently on a premise that seemed incontestable at the time: the United States is a liberal democracy, meaning a society committed to the philosophical liberalism of John Locke and the Declaration of Independence. As I explain below, since roughly the mid-twentieth century, our assumptions about how to divide ourselves have been based mainly on aggressively liberal conceptions of who and what we are, how and why we divide ourselves, what it means to do so, and the consequences of self-division. 1 The classic anthropological work on the seemingly basic human urge to create social and political divisions along various and shifting cleavages is E.E. EVANS-PRITCHARD, THE NUER: A DESCRIPTION OF THE MODES OF LIVELIHOOD AND POLITICAL INSTITUTIONS OF A NILOTIC PEOPLE (1940). 2 See, e.g., Philip Pettit, Institutional Design and Rational Choice, in THE THEORY OF INSTITUTIONAL DESIGN 54 (Robert E. Goodin ed., 1996). 1] DIVIDING THE BODY POLITIC 3 Those premises have lately been thrown deeply in doubt by an immense resurgence of populist illiberalism.3 How we understand division of the polity is highly influenced by whether we approach the subject from the point of view of liberalism or illiberalism, particularly from the point of view of the right-wing populism that has been sweeping the globe, and which is now embraced by a substantial portion of the American electorate.4 Liberals and populists disagree profoundly on the most basic features and understandings of politics. They disagree on what I will call “political ontology”—who and what we are as a political society. They disagree on “political metaphysics”—the basic features of the political world and what in consequence is possi (...truncated)