"To put it bluntly, and ungently, this is indeed gibberish."

To put it bluntly, that wasn't even remotely gibberish.

The "one person, one vote" rule is misnamed, it is actually an "equal numbers of constituents per representative" rule. Once that is understood, it is quite easy to administer, you just need to count the number of people in each district, and see if it's the same.

Most of the complication comes from the rather brute fact that this rule doesn't have any textual basis in the Constitution, which actually violates it rather than embodying it.

The problem with the gerrymandering issue, is that, just like the district population issue, the Constitution presents us with no basis on which to decide which maps are acceptable, and which aren't. Only, unlike district population, there's no long standing precedent we are compelled to pretend is solidly grounded.

And thus the Court is left adrift. Pick maps that force proportional representation? Pick maps that maximize the number of competitive districts? Pick maps that group people of similar interests together? Prohibit drawing maps on the basis of race? Mandate drawing maps on the basis of race? ('Majority-minority' districts.) Map in a manner that completely ignores political consequences?

None of these choices are compelled by the text, and while you might not care about the text, Roberts does.
 

1 person 1 vote is a simple rule. Partisan gerrymandering really is the thicket, because compactness and contiguity are legitimate considerations alongside partisan alignment, because political parties don't have constitutional rights to win elections anyway, and because the need for minority representation may require gerrymanders.
 

Also, there's no administrable standard that can be derived from the Constitution as to how close the district must be drawn to the partisan distribution to ensure that these parties (which, again, have no constitutional status whatsoever, as the framers hated them and warned against them) can win. (Also, what happens if a third party comes along? Are the Democrats required to make sure Green voters can elect a representative?)
 

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Roberts: Appellees contend that if we can adjudicate one-person, one-vote claims, we can also assess partisan gerrymandering claims. But the one-person, one-vote rule is relatively easy to administer as a matter of math. The same cannot be said of partisan gerrymandering claims, because the Constitution supplies no objective measure for assessing whether a districting map treats a political party fairly. It hardly follows from the principle that each person must have an equal say in the election of representatives that a person is entitled to have his political party achieve representation in some way commensurate to its share of statewide support. More fundamentally, “vote dilution” in the one-person, one-vote cases refers to the idea that each vote must carry equal weight. In other words, each representative must be accountable to (approximately) the same number of constituents. That requirement does not extend to political parties.

Maybe I am missing something, but I don't find this paragraph confusing.

I do find the following passage very interesting in the context of the Evenwel v. Abbot decision: "It hardly follows from the principle that each person must have an equal say in the election of representatives..."

Evenwell complained that, basing apportionment on total population gave the votes in districts with large populations of non-citizens more weight than the votes in districts with lesser populations. While the Court cited precedent to allow TX to continue to apportion by total population, the Thomas and Alito concurrences suggested states could also apportion by citizenship and Roberts joined the rest of the Court in expressly declining to consider the question.

This is not merely an academic question. The current GOP effort to have the census ask the citizenship question would enable states to identify citizens and thus apportion by citizenship in 2021.

His Rucho comment suggests Roberts may agree with Thomas and Alito that states can indeed apportion by citizenship.
 

"Partisan gerrymandering really is the thicket,...and because the need for minority representation may require gerrymanders."

See, there's the problem. That implicitly accepts the notion that minorities can't be represented by anybody not a member of the minority. A notion which is alien to the Constitution's (As amended!) principle that people are to be treated without regard to race.

The obvious solution is to just district without regard to politics or race at all, and this would probably be a straightforward solution were it not for the fact that one particular party has its voters distributed in an inefficient way, such that honestly drawing the maps without any regard at all for political consequences predictably disadvantages that party.

This leads to the attempt to define redistricting that doesn't go out of its way to negate that natural disadvantage as "gerrymandering"; Roberts complaint that people keep trying to smuggle proportional representation in, in the guise of opposing gerrymandering.

I have proposed using computers to generate many thousands of maps observing the neutral criteria such as compactness, equal population, respecting geography, and otherwise totally random. Then let each party eliminate a large number of them that they object to, sort of a redistricting voir dire.

Then once every party has eliminated the maps that would particularly hurt it, one of the remaining maps gets chosen at random.

But, I will frankly admit, there is no more basis in the Constitution for picking this approach to redistricting, than for picking any other. And that is always going to be a problem for any textualist in fighting gerrymandering on a constitutional basis, barring some constitutional amendment.

Of course, textualism is something Sandy rejects, which is why Roberts' writing based on it comes across to him as gibberish.


 

"The problem with the gerrymandering issue, is that, just like the district population issue, the Constitution presents us with no basis on which to decide which maps are acceptable, and which aren't."

The Constitution doesn't present us with a basis to decide what constitutes compliance with or breach of *any* of its provisions. Nobody knows what "reasonable" searches and seizures might be, nor what constitutes a "cruel and unusual" punishment. Etc. If it did that it would partake the prolixity of a legal code, to coin a phrase.

And that's without even considering atextual "provisions" such as "equal dignity of the states".

The whole point of a common law legal system is to work out these issues on a case-by-case basis as new considerations arise.
 

"Only, unlike district population, there's no long standing precedent we are compelled to pretend is solidly grounded."

I'm not sure what you mean by this, but the text of Art. I does not compel election by district. That has been the practice since (off memory) 1842, but AFAIK nothing prevents the Court or Congress from mandating a different practice.
 

"The Constitution doesn't present us with a basis to decide what constitutes compliance with or breach of *any* of its provisions. Nobody knows what "reasonable" searches and seizures might be, nor what constitutes a "cruel and unusual" punishment. Etc. If it did that it would partake the prolixity of a legal code, to coin a phrase."

Yeah, but those are express prohibitions. Plus, they are amenable to common law rulemaking. (And in the Fourth Amendment context, there's even an express command of judicial involvement.)

I don't doubt that a constitutional amendment that both said that partisan gerrymandering was unconstitutional and that made it a justiciable question under Article III would force the courts to decide this issue, even though it would be impossible to do fairly. But what we have now is (1) a Constitution that pretty obviously does not prohibit gerrymandering (if it did, majority-minority districts would be unconstitutional) and (2) a textual grant of the power to another branch of government. In that situation, there's no reason to wade into the thicket, even if the Constitution requires that the courts wade into other thickets.
 

Brett: The problem with the gerrymandering issue, is that, just like the district population issue, the Constitution presents us with no basis on which to decide which maps are acceptable, and which aren't."

Mark: The Constitution doesn't present us with a basis to decide what constitutes compliance with or breach of *any* of its provisions.

There is no need to reach the self-evident problems with providing a remedy because there is no breach.

The Constitution nowhere provides a political party or its adherents with the right to districting which maximizes the efficiency of their voters.
 

Thank God we have infallible you. Professors seem to suffer from many of the same shortcomings as justices.
 

I should add another point on this. One great argument in favor of the political question doctrine's applicability here is that both parties have been totally results oriented on this issue. Back when I came out of law school, it was liberals who were against the justiciability of gerrymandering, and it was conservatives who were arguing that odd shaped districts that packed Democratic voters in were unconstitutional. See Shaw v. Reno, especially Stevens' separate opinion, for a flavor of this.

So we have an issue where each side is ready to flip as soon as they see an advantage to taking a particular position. Which is fine-- but it suggests it is in fact a political question.
 

Dilan: So we have an issue where each side is ready to flip as soon as they see an advantage to taking a particular position. Which is fine-- but it suggests it is in fact a political question.

Thank you!

Both parties play games to gain partisan advantage.

If Republicans were the ones who self-segregated into cities or were favored by illegal aliens, the party positions on on both districting and immigration would change 180 degrees in a nanosecond.
 

"The Constitution nowhere provides a political party or its adherents with the right to districting which maximizes the efficiency of their voters."

Bart's rarely right, but he's right here.

You have to understand that the entire issue here is one of injury to one of the parties. Your vote is counted just as much in one district as in another. And voters have the right in any district to form coalitions to defeat incumbents-- in other words, nothing prevents the Republican voters in an 80-20 Democratic district from forming a coalition with a 30 percent share of the Democrats to get behind a compromise candidate to challenge the Democratic incumbent. They aren't going to get a rock-ribbed conservative in that district, but they could very well get a politician who owes them for their support and is responsive to some of their concerns.

The injury is to the party. It's the Democratic Party, writ large, which is saying "we aren't getting to elect as many Democrats as we should". But the Constitution was not intended to encourage political parties. It does, for various functional reasons, but it wasn't intended to. The framers warned of "factions", they disliked parties, and it certainly would be a perversion to read the Constitution as giving special rights to parties to get their slates of candidates elected. It's very problematic to claim that a Constitution that barely tolerates political parties was intended to ensure that they are able to successfully concentrate power.

Also, one other thing. Gerrymandering has a natural limit. Which is this. In big wave elections, the gerrymanderer can get crushed. Let's say the Republicans gerrymander a bunch of districts 55-45. But then the party gets involved in some huge governmental scandal. Guess what can happen? That's right-- they can lose the whole slate of them. Whereas if they districted normally, they might only lose a few seats.

This can also happens if population demography changes or partisan makeup changes in the districts.

So there's an incentive not to over-gerrymander anyway.
 

One person one vote actually isn't a simple rule, Dilan, because after Evenwel it's pretty clear that states are allowed to equalize on the basis of a wide variety of denominators. As I wrote here:

http://narrowestgrounds.blogspot.com/2016/04/supreme-court-vindicates-venerable-one.html?m=1
 

"because after Evenwel it's pretty clear that states are allowed to equalize on the basis of a wide variety of denominators."

That's because "one person, one vote", (Or, as I noted, really equal numbers of constituents per district.) isn't to be found anywhere in the Constitution.

The constitution set up a bicameral system, where one chamber had election by people, and the other had election by, (as is complained.) by "land". And both had to agree to do most things.

By itself, the Senate could allow a small minority to rule. By itself, the House could allow a purely regional majority to rule. Together, to get anything done you need a well distributed majority.

But the Senate absolutely was not based on "one man, one vote", or anything like that. It was "One state, two votes", regardless of a state's population.

States originally replicated this system, in order to achieve the same advantage: That only well distributed majorities could rule. But then, with no textual basis, the Supreme court ruled that states were somehow constitutionally forbidden to be organized in the same manner the federal government was constitutionally MANDATED to be organized.

Evenwel was just a very slight backing off from that utterly atextual decision.

Note, I'm not saying it's a bad idea for the House to have equal population districts. It's a quite reasonable thing. It's just a quite reasonable thing the Constitution didn't actually mandate.
 

"The "one person, one vote" rule is misnamed, it is actually an "equal numbers of constituents per representative" rule."

If this is all it means, then racial gerrymandering would be permissible.

There are also hidden assumptions in your claim. The most significant is an assumption about the way the system works. The easy way to see that is to assume that the US runs a Parliamentary system. In that case, the apportionment must be fair between parties because that's the whole basis of the system.

In the US today, the Republican party operates as a Parliamentary party, and the Dems are slowly catching up to that. If you begin with that assumption, then solutions such as proportional representation not only make sense but seem required.

But even if you don't see the current state of parties that way, the whole concept of "representation" is underdeveloped in Roberts' opinion and in the Founding era. Let's start with Madison's explanation in Federalist 10:

“The effect of [representation] is ... to refine and enlarge the public views by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations. Under such a regulation, it may well happen that the public voice, pronounced by the representatives of the people, will be more consonant to the public good than if pronounced by the people themselves, convened for the purpose.”

This is to say that a representative body should NOT be partisan, or at least that it should operate in such a way that it should reduce partisanship. But, of course, gerrymandering *increases* partisanship. It makes Parliamentary parties more likely. That leaves us with 2 options: (1) If Parliamentary parties are a good thing, or an ineluctable fact of modern politics, then the concept of representation has to include them; or (2) if Parliamentary parties are undesirable, then eliminating gerrymandering is a good way to reduce the likelihood that they'll take over the system.
 

Now let's consider some other views from the Founding. Here's John Adams and his understanding of representation:

“As good government is an empire of laws, how shall your laws be made? In a large society, inhabiting an extensive country, it is impossible that the whole should assemble to make laws. The first necessary step, then, is to depute power from the many to a few of the most wise and good. But by what rules shall you choose your representatives? …

The principal difficulty lies, and the greatest care should be employed, in constituting this representative assembly. It should be in miniature an exact portrait of the people at large. It should think, feel, reason, and act like them. That it may be the interest of this assembly to do strict justice at all times, it should be an equal representation, or, in other words, equal interests among the people should have equal interests in it. Great care should be taken to effect this, and to prevent unfair, partial, and corrupt elections.” My emphasis.

That forces us to consider what "interests" need to be represented in the Legislature. If we take Adams literally, it should be all of them. Hamilton wasn't willing to go that far. In his view (see Federalist 35), “The idea of an actual representation of all classes of the people, by persons of each class, is altogether visionary.” Hamilton suggested that, for example, merchants could represent the interests of tradesmen. Putting aside the validity of that, this is pretty close to re-stating the British argument before the Revolution that Americans were "virtually" represented in Parliament (which the Americans emphatically rejected).

But if Adams captures an important truth, then we have to reckon with the question of precisely *which* interests deserve protection in order to have a proper "representation": blacks? Jews? libertarians? Republicans?

I don't have a perfect answer to this dilemma. But I do know that if partisanship is an important feature of modern American elections, then a serious effort to confront the issue of representation must engage with these issues. Roberts refused to do that, leaving us with the worst of all possible worlds.
 

Is it clear that "constituents" is not limited to citizens and voters?
 

"If this is all it means, then racial gerrymandering would be permissible."

At the moment, racial gerrymandering is legally mandated, alas.
 

"Is it clear that "constituents" is not limited to citizens and voters?"

Sure, includes legal resident aliens, too.
 

"At the moment, racial gerrymandering is legally mandated, alas."

Under your theory, Jim Crow is legal.
 

Madison thought political parties were evil. There is not even a slight chance he would have countenanced an argument that a political party should get more seats.
 

"The constitution set up a bicameral system, where one chamber had election by people, and the other had election by, (as is complained.) by "land". And both had to agree to do most things.

By itself, the Senate could allow a small minority to rule. By itself, the House could allow a purely regional majority to rule. Together, to get anything done you need a well distributed majority."

This misstates Madison's argument in Federalist 10. It confuses a method with a goal. The easiest way to see that is to note Madison's vehement objection to the Senate, which he refused to justify in The Federalist.

But even if this is just you trying to justify the Senate on this ground, it doesn't work. In the context of the Founding, a "small" state was small geographically as well as in population. In an agricultural society, the 2 factors were closely related. By giving preference to "small" states, the Senate gave unwarranted representation to *small* geographic areas, the exact opposite of your claim. In fact it was the small northeastern states which supported the unrepresentative Senate. They had to bribe some of the larger Southern states (notably NC) with concessions on slavery in order to get them to agree to such a Senate.
 

"Madison thought political parties were evil. There is not even a slight chance he would have countenanced an argument that a political party should get more seats."

Yep. He wouldn't hesitate to strike down partisan gerrymanders.
 

This should be a fun thread with Mark appealing to that evil slaveholder Madison etc.

Anyway, the OP is a mixed bag including a refreshingly human balancing of various threads. For instance, Sandy Levinson is not saying the result of the majority is "gibberish" as much as part of the argument. It might be a case where Roberts supports a problematic result and is forced to use dubious reasoning to get us there. One gets an idea that if he had his druthers, e.g., Roberts would not support various electoral law precedents he was stuck with.

Note SL takes the "one person, one vote" principle as a given but argues on some level it never has been fully and adequately explained in case law. I'm not sure if this is true, but anyways, basically if something is taken as a given but it was not really explained, trying to find a good explanation might be hard going.

It is not really totally "easy" to apply the one person, one vote standard when experiencing it in the course of actual practice and jurisprudence. The common law system here (as referenced by Mark Field) is helpful and provides opportunities that might be seen too complicated as thought experiments. Anyway, applying the one person, one vote standard, especially if we don't get a good sense of why it's important, can be an artificial process. Concern about promoting racial equality alone complicates the equation.

Dealing with partisan gerrymandering is complicated but as a whole it is worth it for the courts to be involved, including the federal courts. As has been noted, they probably still will be in some fashion (e.g., usage of racial gerrymandering as backdoor partisan gerrymandering) State courts also will be involved.
 

"Dealing with partisan gerrymandering is complicated but as a whole it is worth it for the courts to be involved, including the federal courts. As has been noted, they probably still will be in some fashion (e.g., usage of racial gerrymandering as backdoor partisan gerrymandering) State courts also will be involved."

As they should be. I've said it before, but I'm a Footnote 4/John Hart Ely advocate, and the best use of the Court is to enforce the operation of democracy and mostly stay out of the way after that.
 

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Shag: Is it clear that "constituents" is not limited to citizens and voters?

No.

The Constitution protects the rights of the People.

Foreign citizens who are legal residents are guests who can be removed by an act of Congress. Any consideration a Congress critter extends to them is a gift. Illegal aliens are criminal trespassers and should be granted no consideration.
 

What's particularly laughable about punting on gerrymandering because it's supposedly a political question is that the very essence of gerrymandering is to subvert political will and solution.

Of course there are numerous provisions of the Constitution that could be said to be violated by it (the EPC, the 15th Amendment [which presupposes a right to vote, which when then combined with EPC gets you there], the Guarantee Clause) and the Court has found workable remedies in areas just as if not more complex.
 

the Court has never deigned to offer a coherent explanation of what exactly that term is supposed to mean

The term was used in Gray v. Sanders.

The concept of "we the people" under the Constitution visualizes no preferred class of voters but equality among those who meet the basic qualifications. The idea that every voter is equal to every other voter in his State, when he casts his ballot in favor of one of several competing candidates, underlies many of our decisions. ...

The conception of political equality from the Declaration of Independence, to Lincoln's Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing—one person, one vote.

Also, Wesberry v. Sanders:

We do not believe that the Framers of the Constitution intended to permit the same vote-diluting discrimination to be accomplished through the device of districts containing widely varied numbers of inhabitants. To say that a vote is worth more in one district than in another would not only run counter to our fundamental ideas of democratic government, it would cast aside the principle of a House of Representatives elected "by the People," a principle tenaciously fought for and established at the Constitutional Convention.

There was a concern for "rotten boroughs" in which some districts with less people had equal weight as those with less. For instance, a NYC body gave each borough (with significantly different population sizes) equal weight. The Supreme Court declared it unconstitutional. (Board of Estimate of City of New York v. Morris):

Electoral systems should strive to make each citizen's portion equal. If districts of widely unequal population elect an equal number of representatives, the voting power of each citizen in the larger constituencies is debased, and the citizens in those districts have a smaller share of representation than do those in the smaller districts.

The OP argues:

At the very least, such an assertion rests on an entirely underdeveloped theory of what it means to call someone a “representative” and to suggest that “representatives” are in fact, as an empirical matter, “accountable” in some specifiable manner, to all their “constituents,” whatever, say, their party identity, their eligibility to vote, or, perhaps, even their status as citizens. No serious person would assert such a thing.

I'm not sure what to make of this though there clearly are people who developed in detail what these things mean, including some who wrote on this blog presumably. Case law can be cited to talk about such things. For instance, one case involved judicial elections (Chisom v. Roemer) and it held "representatives" can be members of the executive and judicial branches, using the word generally in certain contexts.

A complex understanding of what is at stake is noted and over the years various justices (and others) dwelt into the philosophy of it all. I won't try to say more here.
 

"with no textual basis"
The basis is the EPC. The lesson of Jim Crow voting laws showed exactly how voting schemes like unequal districts and gerrymandering were used to deny equal protection of the law. This is historical fact.

Btw-our Constitution nowhere mandates that race not be regarded. What is mandated is equal protection of the law almost certainly requires some regard for race by the government (for one thing, you wouldn't even know if races were being treated unequally a la Jim Crow in many instances without regarding race!).
 

"What's particularly laughable about punting on gerrymandering because it's supposedly a political question is that the very essence of gerrymandering is to subvert political will and solution."

It's the same lousy excuse the courts gave for Jim Crow disenfranchisement.
 

Not for the first time, I'm especially grateful to Joe for actually reading and understanding my rather extended posting. That is, it is has almost literally nothing to do with whether or not partisan gerrymandering is or is not constitutional or whether it is justiciable. I'm persuaded by Kagan's dissent, but, as I thought I clearly indicated, the posting is not in the least a defense of her dissent as against Roberts's Frankfurterian arguments about limited judicial capacity. It is exclusively about the meaning of the "one-person/one-vote" mantra and the extent to which Roberts's "in other words" is gibberish inasmuch as there is an obvious difference between "voters" and "constituents." The requirement of equal number of constituents, whatever their status, might make sense, but it would have to be defended on the basis of something quite different from the mantra of one-person/one-vote. I almost literally cannot understand how anyone can fail to see the difference.
 

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Yes, Mr. W. cites various ways a "textual basis" is present and it might not even be limited to that (Justice Black cited Art. I language). Now, maybe, things like the Guarantee Clause are "political questions" (though some argue it shouldn't be & I saw reference of certain state courts using a state analogue), but that is another matter.

Plus, mere text as compared to text plus structure and so forth that provide legitimate gloss (at times snidely referenced as "penumbras and emanations") is not the only way the Constitution has been interpreted. Never was.

The tendency of some to apply the 10A as if it has more words is an example.

===

I appreciate SL's comment and it's an example of how slogans are only so useful. I think they have some value as a place to start and things with generally understood qualities. But, there is a lot of complexity. The "right to privacy" comes to mind here.
 

"Yep. He wouldn't hesitate to strike down partisan gerrymanders."

No way. Gerrymanders date all the way back to the founding (Elbridge Gerry was MADISON'S VICE PRESIDENT!), and injuries to political parties ("factions") would have been unimportant to Madison.

Not even the left thought partisan gerrymandering was unconstitutional until about 15 years ago. Rather, both parties happily gerrymandered, and most on the left condemned conservative attempts to rein in majority-minority districts.

What happened is that Democrats started blaming gerrymandering for losing elections, and then conveniently dug up a bunch of out of context statements by framers to pretend that a practice that has always been constitutional was somehow inconsistent with constitutional design.
 

"Dealing with partisan gerrymandering is complicated but as a whole it is worth it for the courts to be involved, including the federal courts."

Actually it would be a disaster. With no administrable standards, everyone will strike down only the gerrymanders which help the other parties.
 

"As they should be. I've said it before, but I'm a Footnote 4/John Hart Ely advocate, and the best use of the Court is to enforce the operation of democracy and mostly stay out of the way after that."

FOOTNOTE 4?

If there's anything that is completely stupid to invoke in this context, it is footnote 4. The Democratic Party is not a discrete and insular minority.
 

"the Guarantee Clause"

If you think it violates that, you are out of luck. Guarantee Clause cases have never been justiciable.
 

"The basis is the EPC."

Which for a century and a quarter was never thought to bar gerrymanders. And which basically provides no special rights at all to political parties.

The voters in a gerrymandered district are not denied any equal rights. They can form any coalition that is viable. You WANT them to be able to elect Democrats, but there's no constitutional requirement that they be able to do so.
 

"It's the same lousy excuse the courts gave for Jim Crow disenfranchisement."

Incorrect, Jim Crow was (wrongly) upheld on its merits as not a violation of equal protection, not ruled nonjusticiable.

This is my problem with you. You purport to be this great historian but you just make stuff up and always to support the current Democratic Party line.
 

One other thing about this. One of the reasons why I am very skeptical of judicial remedies against gerrymandering is because racial gerrymanders got us lots of minority representation in Congress.

If you maximize the number of Democrats, what you will lose is the sorts of districts that are more likely to elect minorities, or left-wingers, for that matter. You will get center-left white Democrats. One reason we know this is before the Voting Rights Act got us majority-minority districts, we got very few minorities and a lot of centrist whites, in both parties.

And in that sense, it is not surprising that the strongest advocates of the supposed unconstitutionality of gerrymandering are center-left white Extremely Online folks. If you are a Bill Clinton Democrat, this is the legal rule that will get the legislature full of people just like you, and will reduce the number of pesky lefties who get in your way.

On the other hand, if you prefer a more left wing, and especially a more diverse, Democratic caucus, gerrymandering is your friend.

I would not like to lose Congressional Black Caucus members in a misguided attempt at proportional representation. But then, I don't think that legislatures should be filled with people just like me.
 

"injuries to political parties ("factions") would have been unimportant to Madison."

I don't like to speak for Mark when he can do so so well, but I imagine his point is that hating political parties Madison would have struck down gerrymandering in that it's a thing harmful to our democracy done only to benefit a party (faction) in keeping power.

 

"Incorrect, Jim Crow was (wrongly) upheld on its merits as not a violation of equal protection, not ruled nonjusticiable."

Again, I think what he's getting at here (especially given my comment he's responding to) is the aspects of Jim Crow that involved diluting/thwarting African-American voting power and the courts punting on getting involved because it should be addressed politically. We know drawing the political lines and processes was used to oppress the AA voting power (and AA's themselves), and this is why I find it wrong to say these things only 'harm parties' with 'no right to votes'.

"Which for a century and a quarter was never thought to bar gerrymanders." "Guarantee Clause cases have never been justiciable."

You're missing my point, I'm aware of these historical facts, my point is: so what? I think the Court was wrong on all counts. And best for me the Court itself does this and has so in this area (Baker v. Carr for example). With time and increased knowledge the Court can look at the principle in a text (EPC) and a long standing practice (say, districting) and see that the practice is at odds with the text *and that something can and should be done about it judicially* (which they did in Baker). My point is that the 1. the idea that there's no textual basis to act here is silly, there's as much here as there has been for many Court intrusions and reversals of long time precedent to boot and 2. the idea there's no way for workable remedies is also silly, as the Court has intruded itself into similarly complex, politically fraught problems (the coercion doctrine in federal spending comes immediately to mind) with no textual basis when it seemed there was a structural hole in our system that would thwart the overall idea of our federal democracy.
 

As to Sandy's more specific point, I agree that on-person/one vote has all kinds of complexities inherit in it and that Robert's ignores this in making the point noted. I think the explanation most likely is that Baker has become kind of a hallowed precedent because of a result with strong intuitive appeal to most fair minded people though the reasoning brings up many underlying questions upon close examination. In that it might be like Brown or Griswold. Roberts wouldn't want to be seen as attacking this hallowed precedent but he must distinguish it to get the result here, hence the gibberish. He 'deals with' the hallowed version of Baker like the memory of a high school flame, ignoring the 'warts' which the flame actually had back in the day, and, if focused closely on, would be similar to the warts he goes on to cite are reason for rejecting a current prospective girlfriend...
 

"I would not like to lose Congressional Black Caucus members in a misguided attempt at proportional representation. But then, I don't think that legislatures should be filled with people just like me."

I'd lose them in a heartbeat. Those majority-minority districts aren't just gerrymanders, they're deliberate racial gerrymanders, doubly toxic. And, it's funny that you say you don't think legislatures should be filled with people just like you, because you apparently agree that blacks can't be represented except by people just like them. The very idea that makes racial gerrymandering so toxic.

We need to move away from the idea that race matters, not cast it in concrete. It only matters because we THINK it matters.

Gerrymandering, if it isn't just weird shaped districts, is drawing the lines to achieve a particular outcome, rather than letting the chips fall where they may. If you need political or racial information to do it, you're gerrymandering.

Like that old saying about racial discrimination: If you want to stop gerrymandering, stop gerrymandering! And that goes especially for racial gerrymandering.
 

Given this nation's history and current reality there's a much stronger case to be made for representation based on race than on land.
 

Thanks MW. You got it both times.
 

"Given this nation's history and current reality there's a much stronger case to be made for representation based on race than on land."

Yeah, if you want to perpetuate that history, rather than move past it.
 

The gist of Brett's comments in this thread is that in his view the political question doctrine should apply to racial gerrymanders, not just political gerrymanders. Here's Brett's early comment in response to Mark:

***


"If this is all it means, then racial gerrymandering would be permissible."

At the moment, racial gerrymandering is legally mandated, alas.

8:36 PM

***

Brett's colorful "alas" is his "tell." But what about the Reconstruction As? Further, what support does Brett's view have in the Chief's opinion in Rucho? I surmise that this is Brett's wishful thinking to Make America Great Again.

 

Brett seems to wish to perpetuate the history of Jim Crow. Brett once again reveals his role in trolling this Blog. Brett doesn't want to engage, rather he wants to show his rage for the Civil Rights movement and concepts of real equality in his unsubtle manner. This trolling just may be his day job.
 

This comment has been removed by the author.
 

Sandy: The requirement of equal number of constituents, whatever their status, might make sense, but it would have to be defended on the basis of something quite different from the mantra of one-person/one-vote. I almost literally cannot understand how anyone can fail to see the difference.

Depends on whether you view a vote as a qualitative thing.

Let's say we have two House districts - one with 10 voters and one with 100 voters. It is true that every voter in both districts enjoys one vote, but the votes in the less populated districts are literally ten times more effective in choosing a representative.
 

My point is that racial gerrymandering is currently being mandated due to the way the Voting Rights act is interpreted to require the deliberate creation of majority-minority districts.

Racial gerrymanders are, given our nation's history, and the 14th and 15th amendment, probably the easiest sort of gerrymandering to declare flatly unconstitutional, and here we are mandating it, instead. That's how screwed up things have gotten.
 

"Yeah, if you want to perpetuate that history, rather than move past it."

Saying drawing lines to ensure usually excluded minority groups are now included in representation is like the history of drawing lines to exclude minority groups in representation is like saying buying a gun for home protection is just like buying a gun to commit robberies.
 

"Let's say we have two House districts - one with 10 voters and one with 100 voters."

Sandy's point is, I think, that it's one *person* one vote, but this obscures the fact that many persons are not voters and that's not equally distributed throughout districts. So the idea that one person one vote is easy to administrate but combating political gerrymanders far more complicated is, at the very least, not obvious.
 

Much was made when at a recent debate Bernie Sanders was, iirc, the only person to support what is long time practice in his home state but few other places, namely allowing inmates to vote. I'm not sure I would go that far, but I do think that prisoners held in an area should not be counted in apportionment in that area if they cannot vote.
 

Brett: Racial gerrymanders are, given our nation's history, and the 14th and 15th amendment, probably the easiest sort of gerrymandering to declare flatly unconstitutional, and here we are mandating it.

The idea that African Americans all think alike and share the same interests is offensive, but I do not see how a MM district violates the Constitution.

The MM district has an equal population to others, so no one's vote is being diluted.

What is your argument?
 

BD: "Let's say we have two House districts - one with 10 voters and one with 100 voters."

Mr. W: Sandy's point is, I think, that it's one *person* one vote, but this obscures the fact that many persons are not voters and that's not equally distributed throughout districts. So the idea that one person one vote is easy to administrate but combating political gerrymanders far more complicated is, at the very least, not obvious.

Sandy, is that your point?
 

I thought the logic of the OP was obvious, but perhaps not (though I can never be sure with some of the comments): the phrase "one person, one vote" is not and cannot be the reason to mandate districts of equal population for the obvious reason that not all persons in a district can vote (children being the most obvious). To use a silly, but nonetheless valid hypothetical, districts with more children allow the voters to have disproportionately more influence with their votes.

Nobody thinks we should penalize districts with more children -- we can afford to let that play out randomly, and in any case we think the parents can represent the interests of those children. What it does do is force the courts (in this case Roberts) to actually deal with what it means to have a "representative" legislature. That was the point I was trying to make earlier. I don't think there's a clear and obvious answer to the question, but I'm pretty confident that privileging a particular party is no part of that answer. Neither is the Court's refusal to police the issue.
 

"The idea that African Americans all think alike and share the same interests is offensive"

This of course isn't the motivation behind MM districts, rather it is that African-Americans were historically denied (often quite consciously) any opportunity to be in a position to choose their representative, so to remedy that some districts should be made that ensure that can happen. They are of course totally free to choose someone of a different race to represent them, it's just about putting them into the position to do otherwise, if they so desire, something they were denied in the vast majority of our history.
 

"deal with what it means to have a "representative" legislature"

Well said, Mark. And I think this is what gets to the potential role of the EPC here. In the social sciences a sample is said to be 'representative' if every element has an equal chance of being chosen as part of that sample. The two concepts are linked. This is made most obvious in the case of historical Jim Crow racial districting shenanigans, but it's not less so when the motivations are different (if they are given current political realities).

To take an example from my field of psychology, the original goal of Binet of IQ test fame was certainly not to create a reified idea of measured 'intelligence' such that a person with a score of 160 could brag they were in some literal sense 'twice as smart' as a person with a score of 80, rather it was to identify especially low outliers for the purpose of assistance. This could be the role of the court in policing gerrymanders, stopping especially egregious outliers. That's certainly not beyond the scope of the judicial branch and, indeed, given the nature of what that would be, it's likely the only branch that can do something effective about it.
 

Actually it would be a disaster. With no administrable standards, everyone will strike down only the gerrymanders which help the other parties.

If you assume the conclusion, it helps, but the conclusion is far from shown.

At any rate, state courts and commissions will continue to decide the matter. New York has a mixed system of commission/legislature involvement here and partisan gerrymandering is not allowed.

The legislature must approve the commission's plans by a simple up/down vote. The legislature must reject two separate sets of redistricting plans before it will be able to amend the commission's proposals. All districts will be required "to preserve minority rights, be equally populated, and consist of compact and contiguous territory." Further, state law will require that districts "not be drawn to discourage competition or to favor/disfavor candidates or parties." In prior redistricting cycles, authority for both congressional and state legislative redistricting was vested with the state legislature. An advisory commission participated in the process.

https://ballotpedia.org/Redistricting_in_New_York

If "state law" requires something, it will eventually be decided by the courts most likely (I would be interested in a good book on NYS constitutional law) and a stream of electoral matters have been including "intent of the voter" type laws that require "standards" that require some degree of picking of various options.

Determining the proper role of courts here is a complex balancing act (see, e.g., prudential standing) that is far beyond the bounds of a single comment. But, again, an absolute bar from federal courts dealing with this matter would not be my appropriate. Furthermore, as commentary by election law experts after the ruling argued (no one on this thread to my knowledge is expert on this subject -- even the author of the OP probably is not an election law expert per se - as compared to someone like Heather Gerken, who has been on this blog in the past) the federal courts will have to address it in some form anyways.

This suggests the matter is not totally novel either. There has been an effort to get a clear fifth vote for decades. A major reason why being partisan gerrymander is closely connected to things already being litigated. As with concerns that Roe v. Wade was a "disaster," it just might be (and experts have shown data to show this; see, e.g., Scott Lemieux, who some here are familiar with), the efforts by voting activists are well founded.
 

Mark:

"One person, one vote" is a slogan shorthand for political equality. I never took it to literally mean an equal number of voters in each district and I don't think the courts did so.

I have not looked at this since law school, so I could be wrong and am open to correction.
 

BD: "The idea that African Americans all think alike and share the same interests is offensive"

Mr. W: This of course isn't the motivation behind MM districts, rather it is that African-Americans were historically denied (often quite consciously) any opportunity to be in a position to choose their representative...

The purpose voters choose a representative to represent their shared interests.

Herding black folk into a single district so they can choose a black representative assumes African Americans all think alike and share the same interests.
 

the coercion doctrine in federal spending comes immediately to mind

I'm inclined to support RBG/Sotomayor in the Affordable Care Act Cases on this subject but at some point courts do formulate standards, case by case, in a range of areas.

The issue is then a question of philosophy of when it is appropriate.

There is some dispute here on that subject, strong dispute, by Mark references an argument on why this as compared to let's say the contours of what "interstate commerce" means should have a closer look. Of course, the courts even per the liberals don't want to totally opt-out of deciding that question (though maybe to be honest that is in effect the result in most cases) and when the questions overlap with other issues (e.g., discrimination), commerce too is litigated.

Like SL, I respect those concerned with the "political thicket" here, but for various reasons (touched upon), think the majority was wrong here. I would, e.g., be willing to make independent commission findings presumptively constitutional. The census case suggests an absolute rule even there might be problematic. But, just making the whole thing a political question as to the federal courts is misguided and in practice won't even work probably.

(Time will tell how much five justices will accept the various other options suggested by the majority opinion.)
 

"Herding black folk into a single district so they can choose a black representative assumes African Americans all think alike and share the same interests."

This comment is of course totally non-responsive to what I said.
 

"I never took it to literally mean an equal number of voters in each district and I don't think the courts did so. "

Good lord, this is exactly Sandy's point, that people who take it thusly haven't thought much about it.

No surprise the guy who couldn't grasp how the citizenship question might suppress response rate can't seem to get it.

What is more important is, is this what conservatism has become (or maybe always was), a failure to grasp something accompanied with a confidence that one still knows the 'answer' in that area?
 

Since the Guarantee Clause has been mentioned, it's worthwhile to recall the circumstances which led to the Court deciding that cases under the GC were not justiciable (Luther v Borden). That case grew out of the Dorr Rebellion in Rhode Island. Simplifying, after the Revolution RI continued to use the original charter given in 1663. It was, not surprisingly, entirely undemocratic (or unrepublican, if you prefer): only property owning white men could vote. Eventually, the tensions from the denial of majority rule became so great that there was an assault (with cannon) on the capital.

Now, I don't think anybody wants to defend the proposition that we're better off having shooting wars than having the courts police the political process in order to assure that an actual democracy is in place. I'd say the same about Jim Crow, where we saw arguments similar to those we see today about the "need to rely on the political process". It's a silly argument because the whole point is to prevent the political process from functioning.
 

Joe:

State courts are following state laws that set state standards of what constitutes a legitimate district.

Federal courts, with absolutely no constitutional standards, will have no guidance whatsoever which increases the likelihood of partisan decisions.

MW:

Mark is just wrong about his idol Madison. As I said, Madison thought so much of Elbridge Gerry that he ran on the same ticket. He just wouldn't care about this. As long as VOTERS aren't denied the franchise, it wouldn't matter to him that a party is hurt.
 

A more general point:

The concentration of Democrats in cities where their electoral influence can be easily diluted is a recent phenomenon. It can't be that those residential decisions suddenly turned a 200 year old practice unconstitutional.
 

Dilan

I think you're ignoring that gerrymandering is motivated primarily and only by party gain. Madison, being a hater of faction, would find it deplorable.

As to your second post, of course changing conditions can make a timeless principle apply differently now (that's the reasoning of the case I think is the best representative of what's now derided as 'living constitutionalism' [TN v. Garner]). If all the voters move to one place it's silly assuming acceptance of democratic principles to continue to defend giving the now ghost towns equal say.


 

joe

I think the coercion doctrine is so apt. Maybe overso.

The remedy is really complicated (at what % of funding does 'coercion' kick in?')

The issue could be solved 'politically.'

And, to boot, there's actually *no* relevant text!

Anyone who says 'well, gerrymander is complicated, could be solved politically, and there's no text on point' but gives credence to the coercion doctrine has some 'splaining to do.


 

"If all the voters move to one place it's silly assuming acceptance of democratic principles to continue to defend giving the now ghost towns equal say."

Careful now. Remember Benjamin Franklin's famous reply to Mrs. Powel: "A large empty land area, if you can keep it."
 

Mr. W: I think you're ignoring that gerrymandering is motivated primarily and only by party gain.

Not even close.

The state legislators who generally make this decision and the current congressional delegation do not want to break up communities of interest and wish to preserve their own seats.

Because they cannot achieve all of these goals, districting is a great example of legislative sausage making.
 

State courts are following state laws that set state standards of what constitutes a legitimate district.

The "laws" repeatedly are not carefully specific "state standards" but fairly vague and open-ended rules, including state constitutional provisions, that the courts have to -- like here -- give teeth to via case by case judicial review. Similar concerns about "disasters" and partisan application by the courts (who after all in many states are elected can be cited.

The same applies here. There are "federal laws" -- as noted in the thread -- that need to be applied. The constitutional rules like "reasonable" searches require some federal doctrinal development. A person like 4A expert Orin Kerr might argue the courts should rely more than others think on legislative methods to fill in details, but such is a question of degree.
 

"I think you're ignoring that gerrymandering is motivated primarily and only by party gain."

He should ignore that, gerrymandering is motivated primarily by the desire to render incumbents secure. Party gain comes second to that, or gerrymandering would be much more aggressive.
 

Anyone who says 'well, gerrymander is complicated, could be solved politically, and there's no text on point' but gives credence to the coercion doctrine has some 'splaining to do.

I guess someone can argue otherwise (wary of getting into some partisan dispute or whatever) but okay enough. I just stated my opinion on how the second probably should be generally kept out of the federal courts (exceptions might apply) while partisan gerrymandering should be given a closer look for the reasons Mark said.

===

As to the Guarantee Clause, the general idea in the case cited seems to be that the question of whether a state is "republican" is a political one akin to something a president [or whatever Trump is] recognizing the legitimate government of a country by receiving their ambassadors. The GC was also relied upon when not seating representatives and senators from the defeated putative "Confederate states" during Reconstruction. Later the clause arose during debates over the validity of referendum and related issues. (John Hart Ely Jr., e.g., IIRC cited it regarding court review of state agencies or some such thing.)

The clause speaks of the "United States" and to me very well can warrant some court review. And, trying to be at least somewhat germane to the OP, as noted by Mark's wider discussion, merely looking at the Equal Protection Clause or whatever is not enough. The is an overall philosophy in place, involving basic questions of republican government [see also, e.g., the reference to the provision in the dissent in Plessy v. Ferguson], as well. In that respect, shades of Frankfurter's dissent in Baker v. Carr, we are hiding the ball by pretending the clause is truly non-justiciable.

Anyway, perhaps that is enough. Here is an old article by familiar name to some on making the Guarantee Clause justiciable: https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1696&context=faculty_scholarship
 

"I think you're ignoring that gerrymandering is motivated primarily and only by party gain."

So is anti-gerrymandering.

No voter is denied a franchise by gerrymandering. The injury is to the Democratic Party, which gets less seats.
 

Corercion is implicit in the notion of a spending power and a Tenth Amendment.

And it ISN'T a political question! It's a policy question!
 

Joe:

You don't get a say on whether the Guarantee Clause is justiciable- decades of caselaw says it isn't, and that caselaw isn't going anywhere.

So any theory that says "we're going to use it to strike down gerrymandering" is a nonstarter.
 

"No voter is denied a franchise by gerrymandering. The injury is to the Democratic Party, which gets less seats."

Except in those places where the injury is to the Republican party, which gets less seats. We really shouldn't humor the pretense that only Republicans gerrymander. Both parties do it, and it's mostly a wash at the Congressional level.

Democrats have taken to defining "gerrymandering" in a way which absolves them of it, by deliberately omitting any allowance for the effects of their voters being inefficiently distributed. They claim that any map that doesn't compensate for this is a "gerrymander". So their own gerrymandering is construed to be undoing 'natural' gerrymandering.
 

How, prey [sic] tell, have Republicans taken to define gerrymandering? Might it be in the hard drive of the now deceased Republican analyst that SCOTUS did not have the benefit of in Rucho?
 

I agree both parties do it, Brett. I was characterizing the people currently asserting its unconstitutionality, which is almost all center-left white Democrats.
 

" which is almost all center-left white Democrats."

That's a product of two things, IMO.

One is the hope that they could persuade the Supreme court to order their geographic disadvantage negated by judicial fiat.

The other is that the left have pretty successfully purged the voting rights movement of conservatives. There are, of course, conservatives concerned with these issues, but they're decidedly not welcome.

I believe in another comment thread here I noted that has seriously reduced the number of foot soldiers the anti-gerrymandering movement had available to it. If it had been permitted to be a bipartisan fight, things might have gone differently.
 

Is Brett's:

"The other is that the left have pretty successfully purged the voting rights movement of conservatives."

fact or fantasy? Was Brett purged in a bipartisan effort?

By the Bybee [expletives deleted], was there a voting rights movement of conservatives during the 1960s?

Following Shelby their was an anti-voting rights movement of conservatives in the former slave states and beyond.
 

"The state legislators who generally make this decision and the current congressional delegation do not want to break up communities of interest and wish to preserve their own seats."

Oh my god, my sides hurt from laughing so hard!
 

"The injury is to the Democratic Party, which gets less seats."

So when Jim Crow Southrons made all city council seats at-large so a 40% black city could elect no black council-persons, who was the injury to? Not the black voters?
 

"Corercion is implicit in the notion of a spending power and a Tenth Amendment."

Laughable. Certainly no more implicit than that gerrymandering is, say, a violation of the EPC.
 

"decades of caselaw says it isn't, and that caselaw isn't going anywhere."

It was only a few years ago that the 'equal dignity of the states' was discovered, so anything can happen.
 

And they say some arguments will never come back into fashion:

"The argument is that, as a negro may not be denied a ballot at a general election on account of his race or color, if exclusion from the primary renders his vote at the general election insignificant and useless, the result is to deny him the suffrage altogether. So to say is to confuse the privilege of membership in a party with the right to vote for one who is to hold a public office." Grovey v Townsend, 295 US at 54-5 (upholding the Texas "whites only" primary).
 

"their voters being inefficiently distributed"

I was close to agreeing with Brett in that I find Democratic gerrymanders (like in MD) unconscionable, but then he makes this statement. There is no 'inefficient distribution'of voters to anyone who takes democracy of people seriously.

I mean, really. Let's say that in a city a veritable tower of babel is built, 100 stories tall and very wide, and that 95% of the state's population lives in that building. In the ten surrounding counties a total of ten people live. Would Brett really think the surrounding counties get ten seats and the city 1?
 

Proportional representation of course solves the pseudo-problem of "inefficient distribution".
 

"There are, of course, conservatives concerned with these issues"

Ever since Obama's wins, which was based on a turn-out strategy, conservatism has adopted as a principle the idea of a restricted electorate.
 

the left have pretty successfully purged the voting rights movement of conservatives. There are, of course, conservatives concerned with these issues, but they're decidedly not welcome.

Who, exactly, was purged? And where were these conservatives before the great purge? Assuring voting rights has never been a cause conservatives supported. Rather the opposite.
 

The census citizenship question just took a very interesting turn.

Trump declined to ask the question, but instead provided access to all the government databases to the census to calculate the number of legal and illegal aliens in the country.

Is Trump proposing to essentially e-Verify every person to determine whether they are citizens, legal or illegal aliens?

If so, will this identification of the names and locations of illegal aliens be provided to ICE?


 

You don't get a say on whether the Guarantee Clause is justiciable- decades of caselaw says it isn't, and that caselaw isn't going anywhere. So any theory that says "we're going to use it to strike down gerrymandering" is a nonstarter.

First, I argued that basically Guarantee Clause principles influence how partisan gerrymandering would be addressed (including the underlining principles at stake per the OP), even if it done sub silento. It also arises in other contexts in this fashion. Over the years, this has been noted by justices, law professors etc. in various instances. I "get to say" this as do they. To the degree it happens, it is not a "nonstarter."

Second, over time, things change. As to who is involved, see, e.g., Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law. We have been around the bend on who influences constitutional application before & I find your take on it not reflective of what actually happens, nor compelled at any rate by what is possible.

Coercion is implicit in the notion of a spending power and a Tenth Amendment. And it ISN'T a political question! It's a policy question!

Caps and punctuation is not convincing on its own, nor assertion. This is not really germane to the OP, so I won't dwell on it.

But, as RBG argues in her dissent in the Affordable Care Act Cases: "The coercion inquiry, therefore, appears to involve political judgments that defy judicial calculation." If so, it is a "political question" -- in this context, that term means the courts keep out of it and let the so-called political branches determine the policy, including what is "too far."
 

"The other is that the left have pretty successfully purged the voting rights movement of conservatives"

It's kinda the opposite. The voting rights fight is pro-gerrymandering, because it helps elect blacks to Congress.

It's white center-left types in cities who seceded from that in the last couple of decades and decided that gerrymandering is unconstitutional.
 

"By the Bybee [expletives deleted], was there a voting rights movement of conservatives during the 1960s?"

Voting Rights Act extensions were bipartisan until the 1990's.

But it was the right that broke away first, arguing in Shaw v. Reno that gerrymanders were unconstitutional.

Then the white center left broke away because they wanted to see more representation for folks like themselves in cities.
 

"So when Jim Crow Southrons made all city council seats at-large so a 40% black city could elect no black council-persons, who was the injury to? Not the black voters?"

Blacks as a class. Which made it a Fifteenth Amendment violation.

Political parties, however, mean nothing under the Constitution. It's perfectly constitutional to injure Democrats as a class, as long as you don't suppress their speech or association rights.
 

The EPC doesn't say squat about districting. And gerrymandering does not deny anyone equal franchise anyway.

Article I, however, contains a specific spending power, which has to be construed as to scope.
 

""The argument is that, as a negro may not be denied a ballot at a general election on account of his race or color, if exclusion from the primary renders his vote at the general election insignificant and useless, the result is to deny him the suffrage altogether. So to say is to confuse the privilege of membership in a party with the right to vote for one who is to hold a public office." Grovey v Townsend, 295 US at 54-5 (upholding the Texas "whites only" primary)."

White orimaries are state action under Smith v. Allwright and violate the Fifteenth Amendment because they deny blacks the vote.

Gerrymandering does neither, and your argument is incredibly stupid.
 

Joe, Obamacare threatened to kick people off Medicaid, which could kill people if the states didn't agree. That's basically no different than Obama putting a gun to the head of state residents. Of course that's coercion.

And this is so dishonest. The Obama people literally said the purpose was to coerce states to take the expansion!
 

Just to be clear, for the 7 justice majority in Sibelius to be wrong about the spending power, you have to believe that it would literally be OK for the federal government to threaten to kill a state's residents if the state does not agree to participate in the program. You have to believe that Article I of the Constitution gives Congress the power to make THAT threat as part of the power granted to spend money.

And that just can't be right. It isn't right. And it shows you the difference between a spending power issue and gerrymandering. Gerrymandering is politicians making decisions about which party gets what benefit. A pure political question and one that the 14th Amendment, which merely requires one person one vote, does not provide any guidance whatsoever on. In contrast, Sibelius turned on something that wasn't a political question at all-- it was a classic constitutional interpretation issue, whether the federal government has been granted the power to threaten to take away people's health care if the state doesn't join a federal program. Courts decide this sort of issue all the time. And it was rightly decided.
 

Second, over time, things change. As to who is involved, see, e.g., Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law. We have been around the bend on who influences constitutional application before & I find your take on it not reflective of what actually happens, nor compelled at any rate by what is possible.

I am not as reductive as you think. If there were four votes on the Supreme Court for Guarantee Clause justiciability and we were talking about what case might attract a fifth vote, I wouldn't call a Guarantee Clause argument a nonstarter.

I am calling it a nonstarter because literally nobody on the Court is calling for those cases to be overturned. And in that situation, the Constitution is a Catholic document, not a Protestant one. Just like Bart and Brett don't get to say that the Constitution really does enact Mr. Herbert Spencer's Social Statics when there isn't anyone on the Court calling for a resurrection of Lochner, it's a nonstarter to say "well, they will just start enforcing the Guarantee Clause". Positivism in a common law legal system requires that you look to what the people who actually get to make these calls do. And if they all say that this is the rule and show no sign of changing it, that's the rule.

As for the more general point of "taking the Guarantee Clause into account", that sort of thing is very dangerous. If something's nonjusticiable, it's nonjusticiable. I don't, for instance, want the courts to "take the Pardon Clause into account" when deciding a criminal defendant's constitutional arguments. The Pardon Clause is nonjusticiable, which makes it a deus ex machina. It's up to the President to decide how the Pardon Clause works and up to the courts to decide constitutional cases as though it isn't their concern.

That's how the Guarantee Clause should work too-- it's up to Congress to decide how to deal with states that fail to guarantee their residents a republican form of government, which means that courts should ignore it when deciding justiciable cases.
 

"There is no 'inefficient distribution'of voters to anyone who takes democracy of people seriously."

All you've just done is to demonstrate that you actually don't understand the issue of "political geography" and inefficient distribution of votes, or are confirming what I said about defining "gerrymandering" as any map that doesn't negate the natural disadvantages of Democrats.

Imagine a hypothetical state, comprised of two peninsulas, separated by a wide expanse of water, like Michigan. Or, if you like, long and narrow, with a river through the middle.

The state has equal numbers of Democrats and Republicans, but they aren't equally distributed. One end of the state has 90% Democrats and 10% Republicans. The other end has 45% Democrats and 55% Republicans.

Let's be clear: There isn't any way for this state to be mapped that doesn't tremendously disadvantage the Democrats, short of making the districts long, narrow stripes, a few miles wide and hundreds long, divided in the middle by water. Which would be gerrymandering! The natural mapping of the state results in most of the Democrats ending up in a few very Democratic districts, and the balance of them modest minorities in Republican districts.

My example is exaggerated, but this is actually the real world: Democrats are inefficiently distributed, they tend to cluster in areas where they are the overwhelming majority, which results in them elected a smaller number of representatives by very high margins.

And this isn't due to gerrymandering, and only actual gerrymandering could make it go away.

Or some form of proportional representation, of course. But the failure to use proportional representation isn't "gerrymandering".
 

Query: What, if any, are the differences between "gerrymandering" and "actual gerrymandering"? Gibberish?

Brett's imagination - exaggerated - presumably developed overnight. His reference to peninsulas, water separations, e.g., Michigan, had me imagining Brett in his youth in northern Michigus competing with Mexican farm laborers pulling red radishes, Citizen Brett's "Rosebud." The nerve of those Mexican farm laborers going out of their way from the southern border to near the northern border to humiliate Brett.
 

"There isn't any way for this state to be mapped that doesn't tremendously disadvantage the Democrats, short of making the districts long, narrow stripes, a few miles wide and hundreds long, divided in the middle by water"

That's not gerrymandering. Gerrymandering is defined as to "manipulate the boundaries of (an electoral constituency) so as to favor one party or class." Making the districts equal between Rs and Ds would not "favor one party or class". In contrast, treating a geographical feature -- bodies of water in your hypothetical -- as relevant to the distribution of political power *among people* (the whole point of republican government) constitutes a gerrymander.

At least we agree that proportional representation is not a gerrymander (though it's not clear to me why it's not under your theory). I'm sure the Rs will be supporting proportional representation any day now in their continued efforts for good government reform.
 

Again, you simply don't want to engage with the point: The distribution of voters on the ground can render a party disadvantaged under any non-gerrymandered map. And that's not just a hypothetical problem, it's the very real situation Democrats find themselves in.

During the Wisconsin gerrymandering case, the Democrats hired a professional to produce a map with the lowest possible "efficiency gap", and the best he could do was a map that had a 2% gap in favor of the Republicans. A less favorable to the GOP map wasn't possible to create, without violating the usual rules of compactness and equal population.

In Wisconsin, neutral map, drawn without any effort to deliberately give somebody the advantage, would be more like 5-7% pro-Republican. So, naturally the Democratic plaintiffs went to the Supreme court proposing that an efficiency gap of 5% or more should be considered evidence of gerrymandering. They literally went to court demanding that a neutrally drawn map be declared unconstitutional!

They were demanding that the Court declare any map not skewed in their favor a gerrymander.
 

"Gerrymandering is defined as to "manipulate the boundaries of (an electoral constituency) so as to favor one party or class.""

Gerrymandering is drawing the map to create a particular outcome, instead of just letting the chips fall where they may. Creating a highly unnatural map in order to erase the disadvantage Democrats are under from the way they're distributed is mapping to create a particular outcome, it IS gerrymandering. So is drawing the map to reproduce the outcome PR would have produced, or drawing it to create competitive districts, or to protect incumbents, or to maximize the voting power of a minority.

As soon as you start drawing the lines with an eye to producing a particular outcome, you're gerrymandering.

You're confirming what I said: Democrats are trying to redefine "gerrymandering" to mean any map that doesn't negate their disadvantages.

Proportional representation isn't gerrymandering, because it's not map drawing in the first place. It's orthogonal to where you draw the lines, it has to do with how you handle the votes, instead. You have to be drawing a map to be "gerrymandering".

 

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic Violence.
Article IV, Section 4

There are several parts to this clause. Are all parts "non-justiciable" or just the first guarantee of of a republican forms of government? What is the value of such a guarantee if it is non-justiciable? Is this guarantee like the product guarantees on geezer cable TV ads meaningless for practicable purposes? Are citizens of a state remediless under the first part of the GC? What's the view of original public meaning originalism on this? The word "shall" is used for each part of the GC clause. If the US fails to act on the second or third parts of the GC clause, would challenges to such failure be non-justiciable? Would such failures also be failings of the Constitution's Preamble about a "more perfect Union"?
 

"without violating the usual rules of compactness"

That's not a "rule". That's a method of gerrymandering.

"Gerrymandering is drawing the map to create a particular outcome, instead of just letting the chips fall where they may."

I gave you the Oxford Dictionary definition. You're responding with arbitrary words you drew out of your nether regions. There is no such thing as "let the chips fall where they may", except possibly proportional representation. Every method of drawing districts contains more or less hidden assumptions and biases.

"Democrats are trying to redefine "gerrymandering" to mean any map that doesn't negate their disadvantages."

This Democrat is using the actual dictionary definition. You are the one trying to manipulate a definition for your partisan advantage.


 

Brett now introduces into his lexiCon [sic] "non-gerrymandered map." Brett seems to challenge Mark's definition of "gerrymander" but fails to distinguish differences between "gerrymandering" and "actual gerrymandering" that are included in Brett's lexiCon [sic, again]. Brett is engaging in "carte wheels."
 

We may be in agreement on this, Shag: No language within the Constitution should be dismissed as "non-judiciable". There are decisions that are not the judiciary's to make, but that's because constitutional test assigns them to somebody else. But even there, WHO gets to make the decision would be "judiciable".

"Non-judiciable" is just the judiciary's way of saying, "We're not going to do our job in this case."
 

""without violating the usual rules of compactness"

That's not a "rule". That's a method of gerrymandering."

Literally, the original "Gerrymander" was a non-compact district created to ensure Elbridge Gerry would be elected. Non-compact districts have been recognized as a form of gerrymandering from the very first, it was only fairly late in the game that it was recognized that, with enough effort, you could rig outcomes using compact districts, and the term got extended to maps that didn't use weird looking districts to achieve particular outcomes.
 

Brett:

Courts properly call an issue non-justiciable when the Constitution expressly grants power over that issue to another branch of government and the Constitution nowhere limits that power in a manner on which a court can rule.

The principle can be abused when a court wants to rubber stamp an act of the other branches of government, but the underlying principle is valid.
 

I did acknowledge that some decisions are assigned to branches other than the judiciary. But that doesn't make them categorically beyond any sort of judicial ruling; For instance, the Constitution gives the power to suspend the writ of habeus corpus to Congress, not the President.

While a Congressional decision to suspend it, or not suspend it, would be 'non-judicable", and the courts certainly couldn't suspend it themselves, a President's decision to suspend it would certainly be judicable, it would be the courts' place to say, "No, that's Congress's power, not yours."

That's what I meant.
 

"Literally, the original "Gerrymander" was a non-compact district created to ensure Elbridge Gerry would be elected."

That confuses the method with the purpose. Even if you were right about the original meaning of the term -- and I doubt it -- the meaning of words changes over time. I cited a dictionary definition applicable today. You can't dodge that by relying on a hypothesized meaning from 200 years ago.
 

It's wrong to think of gerrymandering in terms of shape or space. It's the drawing of lines that doesn't allow the majority to register its consent that is the problem. In the Michigan like hypo given the lines where about 2/3 of the population votes Democratic any map that doesn't give them 2/3 of the seats is a bad map (this of course would be true if the numbers and parties were reversed).
 

Oh, and FTR: the district was not created to benefit Gerry personally, but to benefit his party. Gerry was the governor at the time and the districts at issue were for the state senate.
 

The phrase "separation of powers" is not included in those words in the Constitution, but it's a phrase that's been around for some time. Article III provides certain powers to the judiciary and includes certain limitations on the judiciary. What in Article III limits the judiciary from ruling on the first clause of the GC? Outside of Article III, what parts of the Constitution would limit the judiciary from ruling on the first clause of the GC? Is non-justiciable merely a self-imposed limit on SCOTUS? (I am aware that Congress and the Executive may enact a law limiting the jurisdiction of SCOTUS in certain regards. I am also aware that the Constitution does not specifically provide for judicial superiority over the elective branches. Nor does Article III specifically provide for judicial review.)
 

What zombie Madison would think today (and he was but one person if rather important, who lost various battles during the Constitutional Convention, later split with Hamilton/the controlling Federalist Party & even later continued to have outlier positions as shown by one or more of his vetoes, e.g., his broad reading of the Establishment Clause) is of limited concern to me. The citation of history, including the general philosophy behind the Constitution is of some interest and importance especially granting existing legal techniques, but it is overused.

This isn't just me saying this. It is reflected on how the law is applied as well. As I noted as well, we can try to promote change in the law too and it occurs over the years. One prime example of how party changed things would be how the Electoral College worked. Some Founders themselves in the early 19th Century noted how it worked differently from how they expected. Note however how some still (selectively) appeal to it (on Twitter using sarcasm or cute .gifs) to support Bush and Trump.

What some framer would think today if they came back (maybe via Bill & Ted or in a Meg Ryan romantic comedy) is unclear to me. Like Marshall noted in McCulloch v. Maryland, things they dimly at best expected have occurred and we have to address the whole history. The lessons of history do help here and as repeated seen the result is not the same as the conservative approach.

 

Mr. W: It's wrong to think of gerrymandering in terms of shape or space. It's the drawing of lines that doesn't allow the majority to register its consent that is the problem.

A majority of whom?

A majority of voters will always elect the Congress critter of their choice.

This does not mean every subset of voters with a shared interest will be able to maximize the effectiveness of their votes across districts. Because such efficiencies are often mutually exclusive, this is impossible.

Districting to favor one efficiency over another is not "gerrymandering," which is, in fact, defined in terms of shape and space, or a violation of the Constitution.
 

" It's wrong to think of gerrymandering in terms of shape or space."

The term literally makes fun of a district for having a funny shape. Like I said, Democrats are trying to redefine "gerrymandering" to mean, "not negating Democratic party disadvantages".

This renders a bipartisan coalition against gerrymandering impossible, which is why the fight against gerrymandering has been largely futile, and the Court has thrown up its hands. If there had been a bipartisan movement against it, I suspect Roberts wouldn't have been in such a hurry to declare the matter non-judicable. Even though he'd still have been right about the lack of any textually dictated standard.
 

They were demanding that the Court declare any map not skewed in their favor a gerrymander.

Wow. That's taking acreage worship to an extreme, even for you.

What exactly is it that makes geographic features a critical part of drawing districts? Suppose we have a square state, entitled to two representatives, that has a large river running E-W through the middle. Is there a case, leaving all else aside, for letting the northern and southern sides of the river be the districts, rather than the eastern and western halves?
 

Perhaps I should have mentioned that the non-justiciable principle is not the same as the political question doctrine, neither of which is specifically referenced in Article III. I do not challenge judicial review, although it can be abused. The Constitution is not always clear from its text. Original meanings may be difficult to ascertain. In focusing on a specific provision in the Constitution, one should not wear blinders and consider the Constitution as a whole in its interpretation/construction. The Court was considered the weakest branch back in 1787. But that has changed. But is the Court too political? We do have political dysfunction. It seems like we all cannot get along. I fear for our national security. I was a pre-teen when Pearl Harbor came along and America united. Hopefully it won't take a WW III to unite America again. There were America Firsters and isolationists back then, but America united. Out of WW II came the GI Bill, which permitted for educating those who served. My brother served in WW II (post hostilities) and got the full GI Bill. This permitted may family to fund my college/law school. days within the family budget. There was post-WW II prosperity. not only for America but the rest of the world. But here we are with political dysfunction, while there are many problems to resolve. Does political dysfunction mean that at the national level America does not have a republican form of government?
 

Shag raised some interesting questions.

There are several parts to this clause. Are all parts "non-justiciable" or just the first guarantee of of a republican forms of government? What is the value of such a guarantee if it is non-justiciable? Is this guarantee like the product guarantees on geezer cable TV ads meaningless for practicable purposes? Are citizens of a state remediable under the first part of the GC? What's the view of original public meaning originalism on this? The word "shall" is used for each part of the GC clause. If the US fails to act on the second or third parts of the GC clause, would challenges to such failure be non-justiciable? Would such failures also be failings of the Constitution's Preamble about a "more perfect Union"?

There are various parts of the Constitution that generally are not subject to judicial review and even if they are of it is of limited value. A prime example would be impeachment (some extreme case might be imagined such as if the Senate decided majority rules there), which leads to the argument that "whatever the House wants" is the test.

Perhaps I'm a naive outlier, but I don't think this is true. There is a text here and it binds some in practice. The use of judicial review even for the Bill of Rights was seen as a limited check in the early years. A text was in part seen as valuable for its moral force, something for the people and members of the government to appeal to, not just courts. All of this over the years applied for impeachment. A simple "no confidence" rule was not applied. The text was seen preventing that. To the degree it does not, the Constitution is being violated.

The word "shall" pops up repeatedly in political questions. For instance, Congress "shall" meet at least once a year at a designated time. I question, even if it did not, the courts would have the ability to force them to do so. But, it provides pressure to put it in text. It is not meaningless. Of course, the force without teeth as is the case of wider constitutional norms necessary to the smooth running of things. We saw this with recent judicial nominations. Also, we saw people strongly refuting some of what I said.

The "shall" duty in the Guarantee Clause is a grant of responsibility to the "United States" and over the years it was enforced by various acts. This includes the protection from invasion and domestic violence. Laws was passed, including militia laws, to validly enforce. The courts were to some degree involved, such as having the duty to determine normal practices were not appropriate to deal with a breach of the peace under the law passed. It was not deemed to be self-executing in the courts and choices on when use of the power here was necessary deemed a political question. If forces is called up without a state's consent, however, I would think there is a good argument that a state would have standing to sue. See also, the penalty in 14A, sec. 2.

As I said, I think the command does factor in for various disputes. (See, e.g., GREGORY v. ASHCROFT. State discretion over its own government being part of a "republican form of government" arose in many cases and reaffirms my point. This includes liberals such as arguing for independent commissions and RBG in her dissent in Bush v. Gore on how blocking court action there interfered with their power in this context.)
 

Original understanding had a more limited view of judicial review than we do and something of this nature would likely be if anything deemed more inappropriate for the courts. The Federalist Papers etc. did say some on what "republican" means and to the degree judicial review expanded over the years, it seems appropriate to me to bring this clause into the mix. "Republican" after all has a broad meaning -- e.g., it can include certain judicial checks. The enumeration in the Constitution however helps there while in some other context (such as if there was no First Amendment) it might have more importance. Open-ended principles such as the power of the courts did arise in some early cases.

http://press-pubs.uchicago.edu/founders/tocs/a4_4.html

I leave one with the words of Justice Harlan in Plessy v. Ferguson:

People of the United States, for whom and by whom, through representatives, our government is administered. Such a system is inconsistent with the guarantee given by the Constitution to each State of a republican form of government, and may be stricken down by Congressional action, or by the courts in the discharge of their solemn duty to maintain the supreme law of the land, anything in the constitution or laws of any State to the contrary notwithstanding.

In time, if not completely, his dissent was deemed authoritative.


 

"Non-judiciable" is just the judiciary's way of saying, "We're not going to do our job in this case."

Shag's later comment is noted but in general I would say there might be some confusion of what is generally at stake here.

The general idea is that there are certain things that are left to other branches. The Supreme Court in various cases decides this. They "did their job" but noted such and such by the Constitution was left to others. Also, there has to be a "case or controversy," so in various cases it is not the job of the court. Finally, there are things that maybe conceivably can be the job of the courts, but for various reasons are seen as not fit for judgment because courts generally do not have the ability to do them. History and practice is reflected here. To the degree it matters, Hamilton noted this in Federailst. Again, they are "doing their job," but there is a lot of dispute what said job is.
 

I basically agree with Joe on what should be "justiciable". I think it's important to distinguish between things happening at the state level and things happening at the federal level. The Court is indisputably supreme over state laws and actions, and needs to be especially watchful when state actions impact the federal level (as gerrymandering does). It doesn't have to worry about co-equal branches or the enforcement of remedies. So I see no problem with having the courts enforce the GC.

Where I'd be perhaps more cautious than Joe is with something like impeachment. I mean sure, there's a Constitutional standard. But how would the Court enforce a decision that a House charge did not meet that standard? I think that risks power struggles between co-equal branches, and with impeachment -- a clear Art. I power which doesn't require judicial enforcement or approval at any level -- I think prudence dictates forbearance.
 

Brett, do you seriously see nothing wrong with a districting system where the majority of the people vote for party X but the result is more seats for party Y? Is majority rules a 'democratic trick' to you?
 

Mista Whiskas, I advocate proportional representation. That is my preferred system, which I none the less am aware is not in any way, shape, or form, mandated by the Constitution.

But the failure to reproduce the outcome of proportional representation doesn't represent a failure of democracy in a first past the post, single representative per district system, and it certainly doesn't qualify as "gerrymandering" unless it's a deliberate outcome of drawing the map.

In such a system, it is people who are being represented, not parties. Tough luck for the parties, boo hoo.

The Democratic party suffers, relatively speaking, due to having it's members very concentrated, rather than widely dispersed. Maybe they should try doing something about that, rather than attempting to get the courts to redesign our election system to better suit them. I'd suggest running candidates who are locally more appealing, that might work.
 

Mr. W: Brett, do you seriously see nothing wrong with a districting system where the majority of the people vote for party X but the result is more seats for party Y? Is majority rules a 'democratic trick' to you?

There is nothing at all "wrong" and definitely nothing unconstitutional about a minority of voters with a shared common interest being able to leverage their district residence to elect a majority of Congress critters.

Indeed, this leverage exists in any geographic electoral system.
 

Wow, there it is. Our conservatives fundamentally don't believe in democracy.
 

Mr. W:

Representative democracy IS the competition of often mutually exclusive interests in the election of representatives.

You are arguing for a system which places the interests of major political parties above all other groups.
 

"Our conservatives fundamentally don't believe in democracy."

They never have.
 

Where I'd be perhaps more cautious than Joe is with something like impeachment. I mean sure, there's a Constitutional standard. But how would the Court enforce a decision that a House charge did not meet that standard? I think that risks power struggles between co-equal branches, and with impeachment -- a clear Art. I power which doesn't require judicial enforcement or approval at any level -- I think prudence dictates forbearance.

I think this fits into the basic categories provided including the third. See also, my reference to RBG and "coercion." I think basically Walter Nixon v. U.S. is sound though probably would have signed on to Justice White's concurrence. So, probably on the same page.
 

" Our conservatives fundamentally don't believe in democracy."

I'm a libertarian, used to be an activist within the party. "Democracy is two wolves and a sheep deciding what to have for dinner." That's what we think of democracy.

I don't believe in democracy, I believe in liberty. Democracy is just a way of deciding who your oppressor is. I suppose from a certain standpoint it's better that the majority oppress the minority, than the reverse, but I just don't get valuing democracy for its own sake. It only has instrumental value.

Say you went down to your local restaurant, were settling down with the menu, and the waiter walks up to you and says, "We've decided this business of letting individual diners pick what they eat is just too much trouble, and is anti-democratic to boot. We're going to have everybody in the restaurant vote, and then serve everybody what the majority wants."

Would you look at that as an improvement, finally your right to democracy has been vindicated? Probably not.

Democracy is, for some limited range of decisions, the least bad way of making the decision. But that's scant praise, and all I owe it.
 

In one round-up of the term, an analyst noted that yes, there is some natural concentrations that favor one party or the other, but partisan gerrymanders significantly worsen that.

Plus, people naturally can't fly. We as humans however artificially have means to address that. The same can be true regarding districting.

Just to toss it out there, Madison et. al. wanted the Senate to be apportioned within states at least by population. Much to his chagrin, another method was used. Over time, amendments to the Constitution addressed the situation in place. More can be done there.

OTOH, things like boundary lines (except state boundaries) such as set up by rivers or the like are not set as a rule. That is discretion and can be replaced if warranted. It's a pretty artificial thing to require clean lines. It can be a mess in fact -- we saw, e.g., how artificial borders worked in places like Africa, splitting up peoples.

My apologies by the way to SL. Yes, we are going off subject again. By now though you probably have consented to "thread jacking."
 

Democracy is when you take seriously the autonomy and the equality of persons.

No matter how bad two wolves voting to eat a lamb is one lamb eating two wolves without their consent is worse.
 

"You are arguing for a system which places the interests of major political parties above all other groups."

Not at all, I'm arguing that government is only legitimate when it has the consent of the governed and that consent cannot come from minority rule.

You're an authoritarian.
 

Mr. W: "Our conservatives fundamentally don't believe in democracy."

This classical liberal views representative democracy in a bit more favorable light than our resident libertarian.

Government limited to providing basic public goods and keeping people from harming others is a necessity and provides the freest political economy humanity has devised.

Representative democracy is the least worst way of selecting that government. If the purpose of government is to protect the rights of the People, it follows that the People are the ones most likely to choose a government to achieve this purpose, at least for the majority choosing the government. This is why I favor the Constitution's checks and balances creating effective supermajority rule.

Is representative democracy alone, even one with supermajority rule, enough to protect the rights of the people? Not remotely. Modern history is pocked with examples of totalitarian democracies where majorities of voters voluntarily elect governments which abridge their rights. This is why we also need to enforce a Constitution substantially leashing our elected government.
 

"Democracy is when you take seriously the autonomy and the equality of persons."

Oh, BS. Democracy has got squat to do with "autonomy"; If you're voting, you've already decided somebody's autonomy is going to be violated, and are just trying to decide whose.

"Not at all, I'm arguing that government is only legitimate when it has the consent of the governed and that consent cannot come from minority rule."

You don't have the consent of the governed when the majority over here is ruling the minority over there, either. That's the problem with not taking 'land', location, into account. You can get situations where people in one place are ruled by people in another place, with no personal say in the matter.

Indeed, that's what Democrats are aiming for: To rule the whole nation from their urban strongholds, treating the people outside the cities, occupying most of the actual territory, as subjects. You don't want to rule them by winning them over, you just want to roll over them while living someplace else.
 

"I'd suggest running candidates who are locally more appealing [to urban dwellers], that might work."
 

Democracy has got squat to do with "autonomy"; If you're voting, you've already decided somebody's autonomy is going to be violated, and are just trying to decide whose.

If you are voting, you have certain power by voluntarily taking part into an overall system that is set up to better protect our liberty (see, e.g., Declaration of Independence)

If five people set up a club and agree to be restrained by rules set up by some sort of voting, they are still practicing "autonomy" and have the right to leave said club if they want. It might be hard to do so, which should be factored in, but still there is autonomy there.

Then, we get back to the usual grievances about one party in particular. I'm unsure why there is a "War on Christmas" campaign. Seems more favorable to Festivus.



 

Our anti-democracy Bert and Brat source the Constitution from "We, the libertarians ...." By definition libertarians cannot govern. In the past, both Bert and Brat expressed revolutionary 2nd A absolutism views, despite Scalia's negation in Heller v. DC. And each claimed in the past to being an anarcho-libertarian.
 

"No matter how bad two wolves voting to eat a lamb is one lamb eating two wolves without their consent is worse."

It appears that the "libertarian" theory is that if 2 sheep and a wolf disagree, the wolf gets to do whatever he wants. Leave one wolf alive and the sheep are never safe.
 

In any living arrangement with others you're going to have to accept outcomes you don't like. What makes an arrangement fair and legitimate is you get a say. When everyone gets an equal say that's democracy. You two want some to have more say than others just because of where they freely choose to live. It unconscioable
 

Ideally you want to arrange things so that everybody gets to make their own choices on as wide a range of things as possible. Instead of making a fetish of having them vote on what they'll all be forced to do the same.
 

Mr. W: In any living arrangement with others you're going to have to accept outcomes you don't like. What makes an arrangement fair and legitimate is you get a say.

So, if a majority vote to allow Republicans to enslave Democrats, you are OK with that so long as you had a say?

This is why the purpose of government is to protect freedom, not to give everyone a say in harming the minority.
 

Of course not because enslaving people is taking away their say.

Everyone has different ideas of what people can or cannot be allowed to do. The best and only fair way that values every individual's autonomy and equality is to let them each have an equal say.

I mean, why not have voted *within* districts be decided by minorities?

If you're worried about people over here making choices for people over there the situation is by definition and mathematically worse when the people here are < than the people over there!
 

"What is the value of such a guarantee if it is non-justiciable?"

What's the value of the Declare War clause? Or the Preamble.

The founders included some exhortations, for lack of a better word.
 

"What in Article III limits the judiciary from ruling on the first clause of the GC?"

The fact that the GC clause involves fundamentally political questions that the Constitution provides no mechanism or rubric for resolving, even a general one like "equality" or "cruel and unusual".
 

"A prime example would be impeachment (some extreme case might be imagined such as if the Senate decided majority rules there), which leads to the argument that "whatever the House wants" is the test. 

Perhaps I'm a naive outlier, but I don't think this is true."

It depends on what you mean.

As a literal matter, Congress impeaching Obama because he is black or Carter because he was evangelical would be unreviewable. In that sense, an impeachable offense is whatever a House majority says it is.

But you are welcome to argue that neither of those are High Crimes and Misdemeanors, as lomg as you acknowledge that in the end the House gets the final call and not you.
 

(And to be clear, I don't think those, or many other things, are High Crimes and Misdemeanors, and were I a House member I wouldn't impeach on any ground I didn't think qualified. But the members of the House at any given time don't have to listen to me.)
 

"In time, if not completely, his dissent was deemed authoritative. "

No, another part of it was. That part has zero votes on any recent Court.
 

"I think that risks power struggles between co-equal branches"

Um, Mark, gerrymandering cases risk a conflict between the Court and everyone elected from a gerrymandered district. I'd say that is a fight between co-equal (actually a bad term, as the judiciary is third among equals) branches.
 

I believe in democracy. I think gerrymandering is entirely compatible with it, because it does things like allow minorities to get representation in the legislature. And liberals used to agree with me, until they suddenly discovered that once they all moved into cities, gerrymandering was unconstitutional.
 

This comment has been removed by the author.
 

Mr. W: Everyone has different ideas of what people can or cannot be allowed to do. The best and only fair way that values every individual's autonomy and equality is to let them each have an equal say.

The best way to value people's autonomy is to give everyone an equal say over what people can or cannot be allowed to do?

Double-plus ungood, dude. Double-plus ungood.

 

This comment shows a very basic confusion of the fairness and justice of outcomes and the fairness and justice of processes.

Take couple with a child. They will have to make decisions about the child. Will there be a regular bedtime? If so what time? Who will see the child to the bus in the morning? Who will take him to soccer practice?

Now, in making these decisions several models can be followed. A traditionalist may say the man should have more or all the say. A feminist may say the woman should. But I think fair minded people would agree they should each have equal say.

Now mind you, they may make decisions that you think are bad, maybe even awful ones. But the process they decided them by is the only one that respects their individual autonomy and equality.

Even in Classical Liberalville there will be decisions to be made. What will the tax rate be this year? What is the military budget? Will gay people be allowed to serve? How will these decisions be made? The only defensible answer, the only one that recognizes the individual equality and autonomy of each person, is that each will get an equal say and the majority sentiment will carry the day.
 

It's far from obvious that 'republican' is an inherently political term/concept with no judicial guidelines possible in a way that 'equal,' 'reasonable,' or 'cruel' are not.
 

"
It's far from obvious that 'republican' is an inherently political term/concept with no judicial guidelines possible in a way that 'equal,' 'reasonable,' or 'cruel' are not."

Au contraire, I think it is quite obvious, and my point about majority minority districts makes it. Why is it more "republican" to kick blacks out of Congress so that center-left whites can maximize their political power? There's no operative definition of what a "republican form of government" is beyond having a franchise, which every state has.