The American Constitution

[Chris Kern]

On topic,  the [U.S. Supreme Court] decided by 5-4 that Federal courts have no role on adjudicating Gerrymandered* Congressional districts.   The majority more or less involved the "Originalist Doctrine" in the ruling written by Chief Justice Roberts.   I guess this means that the equal protection clause and one person over vote are no longer applicable.

The rationale for the Supreme Court's decision was not the "originalist doctrine,"** but rather the "political question" doctrine, a longstanding legal theory that U.S. courts should confine their rulings to "justiciable" issues.

In such a case the claim is said to present a “political question” and to be nonjusticiable—outside the courts’ competence and therefore beyond the courts’ jurisdiction. . . . Among the political question cases the Court has identified are those that lack “judicially discoverable and manageable standards. . . ."

The opinion of the Court does not purport to be an originalist interpretation of the constitution, and the dissent acknowledges that "the majority does not frame that point as an originalist constitutional argument."

The "equal protection" clause of the constitution continues to operate as a restriction on state legislative attempts to discriminate against certain protected groups (e.g. on the basis of race) or to undermine the principle of one-person-one-vote.

Let the states deal with these state issues.  If the state supreme court thinks there's a violation of their state's constitution, and their state residents' voting rights are being violated, then they can rule on it if they want and correct the lines.  Just keep the feds out of it.

Actually, the U.S. Constitution authorizes the federal government to determine whether the state legislatures have properly regulated congressional elections—but that authority is vested in the Congress, not the courts.

The Court acknowledged that election districts designed to favor one party or another may seem unfair, but that the state legislators and Congress are better equipped than the courts to frame a remedy.

Excessive partisanship in districting leads to results that reasonably seem unjust. But the fact that such gerrymandering is “incompatible with democratic principles,” . . . does not mean that the solution lies with the federal judiciary.

____
*"Gerrymandering" is an American political term for delineating the boundaries of election districts to favor some candidates over others.  Cf. British "rotten boroughs."

**"Originalism" is a theory of U.S. legal interpretation that gives priority to the "original intent" of the body that drafted the constitution or a statute rather than to the subsequent case law based on the original language.  In that sense, it challenges the Anglo-American common law tradition (the importance of adhering to precedent) in favor of a civil law approach similar to that which predominates in Europe and many other countries.

[Slobodan Blagojevic]

Chris, thanks for the above post, much appreciated.

[RSL]

Well said, Chris. A fine summing up of the situation.

[Chris Kern]

Chris, thanks for the above post, much appreciated.

So, where do I send the bill for my fee?

[Slobodan Blagojevic]

So, where do I send the bill for my fee?

I can pay in kind. Any of my images for you to print

[RSL]

+1

[Alan Goldhammer]

Hi Chris,  is hard for me to cut and paste on my  tablet while on Banff.   You cited Congress role on one of your links.   That has more to do with the timing of elections than apportionment of seats.   The Democrats addressed this in HR 1 early in this legislative session but it will never come to a vote on the Senate for the same reason Justice Garland was never voted on.   Even if it did I would not be surprised if the Supreme Court ruled it unconstitutional.   More worrisome is that the court might strike down independent commissions that were enacted by either voter initiative or referendum because it was NOT an act from the state legislature.

Also it is instructive to see what is happening in Florida after the state vote to enfranchised ex- felons.   Governor and dlegislature want to undercut this.   Voting rights are on peril.

[Chris Kern]

You cited Congress role on one of your links.   That has more to do with the timing of elections than apportionment of seats.

The Court's opinion explicitly acknowledges the authority of Congress to address what it considers to be improperly-drawn congressional districts:

[T]he Framers gave Congress the power to do something about partisan gerrymandering in the Elections Clause.  [Slip opinion, p. 32.]

[Alan Klein]

I would have interpreted it in quite the opposite manner. States (within a single country) having different laws is nuts to me.

A common legal system has little to do with different cultures within the same country. If you extrapolate in the British case, you'd have had sharia law decades ago in some towns and the certitude of that increasing in proportion to birth rates. I wonder what the good folks of France would think...

Either you are a country of equal rights and a common legal system or you are a loose federation wide open to departures. That's part of the cause of Scottish Nationalism: it has a lot of its own, different laws, and that tempts further distancings to seem sensible courses to some.

Not all countries want to be that closely tied together; fears of a federal Europe scare some countries out of their pants, and in that particular case, I agree that it would be an ill-matched bundle of tribes that could never hold that close a relationship for all sorts of historical and ethnic reasons.

Rob, As Slobodan said, we're a federation.  The US was founded when 13 sovereign states decided to federate.  But the founders were terrified by royals like your George III and centralized governments of history.  They wanted a very weak central government. So they gave enumerated powers to the central government.  Things like printing money, making treaties with other countries, manning an army and going to war, a post office, the right to regulate interstate commerce.  All other power would flow to each of the individual states and their people who would decide how they want to live.  So some states have capital punishment and some don't, some states have income taxes and others don't, some states have a maximum speed limit of 75, other may have 65mph.  Each state has its own constitution, legislature, rules, police, etc.  The US Constitution also has its Bill of Rights.  Things like freedom of speech, the press, religion, etc. that no state law can abrogate.  So the people are protected against oppressive state government as well.

Regarding how we know we're Americans and of one tribe if we have 50 different states.  Great question.  I'm reminded that for 70 years or so after the USA was founded, people would say the plural "Well, the United States are ........"  The Civil War changed that.  Afterwards, people began saying the singular, "Well, the United States is....."

[Alan Goldhammer]

The Court's opinion explicitly acknowledges the authority of Congress to address what it considers to be improperly-drawn congressional districts:

that's fine if you have faith that the court will not reverse course.   I do not have that faith and find Justice Kagan more persuasive than Justice Roberts.   If we continue to have minority popular vote Presidents there will be a Constitutional crisis.

[Alan Klein]

that's fine if you have faith that the court will not reverse course.   I do not have that faith and find Justice Kagan more persuasive than Justice Roberts.   If we continue to have minority popular vote Presidents there will be a Constitutional crisis.

I think Roberts agrees with Kagan. It will may be unfair.
 The problem Roberts thought was there was no effective way for the Supreme Court to enforce fare line drawing. There was no definition of what is fair. Or how would it be implemented and forced by the Supreme Court. So he deferred back to the States to avoid the never ending problem with trying to be a referee on the federal level.

[RSL]

If we continue to have minority popular vote Presidents there will be a Constitutional crisis.

Really, Alan? And what do you think will be the shape of that crisis? Maybe an uprising similar to the French revolution? Guillotines and tumbrils? Fact of the matter is that getting rid of the electoral college will require an amendment to the Constitution, meaning approval by two-thirds of both houses of Congress, then ratification by three-fourths of the states. You really think a majority of what the Democrats consider "flyover" states would ratify such a thing? The first time a state tries to throw its electoral college votes to the national majority vote in contradiction to the actual vote within their state, that's when the Constitutional crisis is going to take place, and the result's not going to be good for the left.

[JoeKitchen]

Really, Alan? And what do you think will be the shape of that crisis? Maybe an uprising similar to the French revolution? Guillotines and tumbrils? Fact of the matter is that getting rid of the electoral college will require an amendment to the Constitution, meaning approval by two-thirds of both houses of Congress, then ratification by three-fourths of the states. You really think a majority of what the Democrats consider "flyover" states would ratify such a thing? The first time a state tries to throw its electoral college votes to the national majority vote in contradiction to the actual vote within their state, that's when the Constitutional crisis is going to take place, and the result's not going to be good for the left.

On top of that, popular votes are a horrible idea.  Most who advocate for them, do so under the assumption that a two party system would still be in effect.  However, the fact is that the electoral college is what encourages a two party system.  It is almost always the case that a third party candidate, regardless of how popular he/she might be, gets no electoral votes and is essentially doomed to obscurity.  Look at Ross Perot; he was the most popular third party candidate in recent history and still got 0 electoral votes.  This has the effect that there will almost always be a majority support for the winner, and in the few cases where not, a still very close to majority support. 

A popular votes would allow any number of people to run and would almost certainly create a situation where the winner has only a fraction of support of the country.  For example, it would not be out of the question for four candidates to run, each from one of the four corners of the country.  Since all politics is local, it could very well be the case that each candidate gets about 25% of the vote, with the winner just squeaky out a little more then everyone else with most of the votes coming in from his/her corner of the country. 

For those advocating for the popular, do you really think a situation happening like I listed above would be better & less disenfranchising then having a couple rare situations where a candidate who wins the electoral college only slightly looses the popular vote?  No!  A candidate like I just described would never be accepted as legitimate by the 3/4 of the country who did not vote for him/her. 

In a popular vote scenario, pretty much all of the the main players the Dems have right now would proceed right onto the general election, not to mention a few Rebs would as well.  This would create nothing but chaos. 

[RSL]

"A Constitutional Republic, if you can keep it." It's obvious that the Democrats don't want to keep it. Problem is that Democrats live in big cities and haven't a clue what the real world is like. So far, Republicans have been able to protect the Dems from painful reality, but if the Electoral College disappears everyone's gonna have to face that reality, just as the people of Venezuela have had to face it, and the people of North Korea have had to face it. I could go on, but to save Alan further pain I'll stop there.

[Robert Roaldi]

A lighter point of view https://www.thebeaverton.com/2019/06/us-supreme-court-rules-bricking-people-up-in-wine-cellars-is-legal-as-long-as-its-done-for-partisan-purposes/.

[Robert Roaldi]

I'm confused about the recent discussion regarding "gerrymandering". As a matter of interest, doesn't everyone think it's a bad thing that should be outlawed, prevented from happening, discouraged, something?

Or are people ok with it if their "side" wins? If so, how can one justify that?

[RSL]

Nobody likes it, Robert, but the question is whether or not there’s a way to stop it. The Supreme Court can’t really do it, and they run great risk if they try to do it. Let’s face it, whether or not a voting district has been gerrymandered depends on your own point of view. That’s what the Supremes were getting at when they shot down decisions by various judges and refused to get into the act. So what’s left? Legislatures. And golly, legislatures never are biased, right? The point is, there’s no real way to stop the practice. It’s gone on since the beginning and it’ll go on until the end. So let’s get on to something we really can deal with.

[Jeremy Roussak]

A popular vote would allow any number of people to run and would almost certainly create a situation where the winner has only a fraction of support of the country.  For example, it would not be out of the question for four candidates to run, each from one of the four corners of the country.  Since all politics is local, it could very well be the case that each candidate gets about 25% of the vote, with the winner just squeaky out a little more then everyone else with most of the votes coming in from his/her corner of the country. 

The solution employed in countries such as France is to vote over more than one round. All your hypothetical candidates stand in the first round; if none gets more than 50% of the vote, the most popular two stand against each other in the second round and the one with more votes (by definition, more than 50%) wins.

In a place the size of the USA, I suspect it would be a nightmare.

Jeremy

[OmerV]

On top of that, popular votes are a horrible idea.  Most who advocate for them, do so under the assumption that a two party system would still be in effect.  However, the fact is that the electoral college is what encourages a two party system.  It is almost always the case that a third party candidate, regardless of how popular he/she might be, gets no electoral votes and is essentially doomed to obscurity.  Look at Ross Perot; he was the most popular third party candidate in recent history and still got 0 electoral votes.  This has the effect that there will almost always be a majority support for the winner, and in the few cases where not, a still very close to majority support. 

A popular votes would allow any number of people to run and would almost certainly create a situation where the winner has only a fraction of support of the country.  For example, it would not be out of the question for four candidates to run, each from one of the four corners of the country.  Since all politics is local, it could very well be the case that each candidate gets about 25% of the vote, with the winner just squeaky out a little more then everyone else with most of the votes coming in from his/her corner of the country. 

For those advocating for the popular, do you really think a situation happening like I listed above would be better & less disenfranchising then having a couple rare situations where a candidate who wins the electoral college only slightly looses the popular vote?  No!  A candidate like I just described would never be accepted as legitimate by the 3/4 of the country who did not vote for him/her. 

In a popular vote scenario, pretty much all of the the main players the Dems have right now would proceed right onto the general election, not to mention a few Rebs would as well.  This would create nothing but chaos.

That’s an oversimplification. The truth is American politics has become exhaustively expensive and very few organizations and even fewer people would manage it. Ross Perot was a billionaire.

The two party system has led us to what seems an irreconcilable polarization so now people in power are desperately trying to lock in “strength” for their views. Mitch refused to put forth Garland for the Supreme Court because it was a lame duck nomination. Now, of course and unsurprisingly, Mitch has conveniently changed his mind and will recognize a nomination during a Donald lame duck year. That kind of self serving hypocritical bull is being played at the state level. Then there is gerrymandering.

https://www.apnews.com/f30a25baa9b141a6a29113a1e79492a2

Consensus is all but a memory and with the acrimony now hanging over the country, we need a moderating system to mitigate the power of extremism. We need a legitimate third party(at least) to make a more reasoned government. If that requires a popular vote then so be it.

PS  Of course, that is if we actually want a consensus government.

[RSL]

The solution employed in countries such as France is to vote over more than one round. All your hypothetical candidates stand in the first round; if none gets more than 50% of the vote, the most popular two stand against each other in the second round and the one with more votes (by definition, more than 50%) wins.

In a place the size of the USA, I suspect it would be a nightmare.

Jeremy

It's even a nightmare in France, Jeremy.

Unlike the recent "debaters" the guys who wrote the Constitution were smarter than the average bear. The Electoral College has stood us in good stead. I don't see any reason to dump it.