Document Type

Article

Publication Title

Yale Law Journal

Abstract

This brief Essay seeks to make one narrowly targeted doctrinal point: Whatever the merits of motive-based approaches to mediating group conflicts in other constitutional contexts, in the redistricting arena that approach will not be capable of sustaining constitutional doctrine in a coherent, administrable, or useful form. This is not due to general theoretical concerns about motive-based doctrines, but to pragmatic reasons peculiar to the redistricting context. If the Court's current project of imposing constitutional restraints on race and redistricting is to be given principled legal content, it will have to be through another approach. Toward the close of this Essay, I will suggest the most likely alternative. With respect to general problems of group conflict and the Constitution, this Essay's discrete concerns might nonetheless suggest a few broader implications. At the most general level, I will argue that the Supreme Court's struggles stem from misguided efforts to assimilate race-conscious districting to the constitutional framework for other race-conscious government policies. The now reigning approach to policing racial redistricting, the motive-based "predominant factor" test, offers the allure of consistency with other areas of constitutional law. By importing Washington v. Davis and City of Mobile v. Bolden into redistricting, the Court has cast the Shaw doctrine as continuous with established Fourteenth and Fifteenth Amendment principles. But this portrait of continuity is an illusion. At least in the area of race, constitutional problems of group conflict cannot be approached effectively in universal terms. Contexts in which issues of race-conscious policy arise turn out to differ in pragmatic, but central, ways. Whatever the merits of more rigidly "consistent" approaches in other institutional arenas-approaches that argue for colorblindness or race-consciousness in all-or-nothing terms-within the legal system, contextual variations must be attended to if courts are to develop coherent, administrable legal doctrines.

First Page

2505

DOI

https://doi.org/10.2307/797226

Volume

106

Publication Date

1997

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