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View Diary: The problem with our Constitution (84 comments)

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  •  I'm not so optimistic re: popular vote (13+ / 0-)

    or gerrymandering.  In OH, an initiative up for popular vote to establish a bipartisan commission just got crushed.  The people considered and roundly rejected the commission.  A popular vote for the presidency, similarly, wouldn't get the approval of the smaller states or the voters therein.

    •  Don't you think that the courts could help (2+ / 0-)
      Recommended by:
      slowbutsure, paradise50

      in the case of the gerrymander?

      ... but He loves you! -- George Carlin -- (-7.25, -6.21)

      by Tim DeLaney on Sat Oct 19, 2013 at 08:46:21 AM PDT

      [ Parent ]

      •  CA followed a League of Women Voters (3+ / 0-)
        Recommended by:
        Tim DeLaney, paradise50, wader

        recommendation for citizens panel.  It worked.

        ...Son, those Elephants always look out for themselves. If you happen to get a crumb or two from their policies, it's a complete coincidence. -Malharden's Dad

        by slowbutsure on Sat Oct 19, 2013 at 09:01:42 AM PDT

        [ Parent ]

        •  Yes, but CA is an enlightened state. (2+ / 0-)
          Recommended by:
          paradise50, side pocket

          What about TX or OK or NC or IN or [fill in the blanks]? How do we enlighten them?

          ... but He loves you! -- George Carlin -- (-7.25, -6.21)

          by Tim DeLaney on Sat Oct 19, 2013 at 09:05:16 AM PDT

          [ Parent ]

          •  ...it happened in California only because... (4+ / 0-)

            ...both houses and the governor are controlled by Democrats.

            What constitutes "enlightened" these days in politics and voting rights = legislatures and governorships in Democrats hands.

            GOP controlled legislatures and governorships = de-evolution and destruction of rights (whether voting rights or control of your body if you're a women).

            It's pretty cut and dried actually...

            Ignorance is bliss only for the ignorant. The rest of us must suffer the consequences. -7.38; -3.44

            by paradise50 on Sat Oct 19, 2013 at 10:09:47 AM PDT

            [ Parent ]

            •  I thought it happend in California (3+ / 0-)
              Recommended by:
              Tim DeLaney, VClib, paradise50

              because a third or fourth attempt by initiative finally got enough votes.

              One other thing that helped in California was that the previous system was gerrymandered to protect incumbents, not one party or another but an eternal status quo. That problem, people appeared willing to solve.

              into the blue again, after the money's gone

              by Prof Haley on Sat Oct 19, 2013 at 10:32:19 AM PDT

              [ Parent ]

      •  Not really. The Courts can't strike something (6+ / 0-)

        down because it is bad.  If you want a federal court to strike down the process by which the drawing of district lines is done by state legislatures, you have to point to a provision in the Constitution that it violates.  

        The issue of limits on the drawing of districts for the House was addressed by the SCOTUS.  Cases like Baker v. Carr determined that districts could not be drawn by areas if that resulted in vastly different numbers of voters in each district -- the famous "one person, one vote" principle.  

        As a result, drawing district lines is almost always going to favor, or hurt, someone.  For example, minority-majority districts overwhelmingly vote Democratic.  I don't what Constitutional provision you would allege is violated by the system whereby Congress has (pursuant to the Constitution) left it to the states to draw district lines within each state.  

        •  The 14th amendment, Section 1 (1+ / 0-)
          Recommended by:
          paradise50

          Is entirely sufficient to justify eliminating the gerrymander.

          ... but He loves you! -- George Carlin -- (-7.25, -6.21)

          by Tim DeLaney on Sat Oct 19, 2013 at 09:08:51 AM PDT

          [ Parent ]

          •  Care to explain how you reach that conclusion? (6+ / 0-)
            Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
            There's a long history of interpreting that clause, and I don't see any theory that would prevent Congress from giving states the right to draw districts within their state lines.  As long as there's no discrimination based on race (and the closest thing we have to that in drawing district lines are the minority-majority districts that favor democrats), and as long as people have their vote counted equally through the Baker v. Carr principle (you can't have one district with 10,000 people and one district with 1 million people)  I can't see the equal protection challenge.  I can't imagine the SCOTUS finding that the passage of the Equal Protection clause somehow eliminated the ability of states to decide how to draw district lines.  

            The Equal protection clause does NOT provide a basis for striking down anything people think is bad.  The Constitution clearly allows elected officials to make really  really bad decisions as long as they don't exceed their constitutional authority and they don't discriminate based on race, ethnicity, etc.  

            •  coffeetalk, please see my reply to VClib, below. (2+ / 0-)
              Recommended by:
              paradise50, VClib

              The phrase "equal protection" is capable of being interpreted by the courts, just as the court acted in Brown V. Board of Education.

              I recognize that your argument has validity in a very narrow sense. But if a court were to decide that gerrymandered districts did not afford "equal protection" to the state's citizens in a broader sense, who could disagree?

              The difference is between theory and reality.

              ... but He loves you! -- George Carlin -- (-7.25, -6.21)

              by Tim DeLaney on Sat Oct 19, 2013 at 09:35:21 AM PDT

              [ Parent ]

              •  That's just wrong. I responded to you below. (7+ / 0-)

                Brown v. Board of Education struck down discrimination based on race.

                Unless you think minority-majority districts are unconstitutional, I have no idea why you think Brown v. Board of Education could apply to drawing district lines.  

                You need to read cases that DO address drawing district lines, like Baker v. Carr.  

                "Equal Protection" does NOT mean all citizens have to be treated equally in every single way.  Our government discriminates all the time.  For the most part, discrimination is ok if government has a "rational basis" (which generally means you aren't doing something based on animus against people based on race, ethnicity, religion, etc. -- government has a right to make these kinds of decisions even if the SCOTUS thinks their reason is a really bad idea).  Our government discriminates against people based on age (only certain aged people can vote) based on income levels (we tax people differently based on income level) on political views (the President clearly takes political views into account in the hundreds (maybe thousands) of political appointments he is allowed to make throughout the government.  

                If you were correct that people simply had some right to be treated equally, our income tax system would be unconstitutional.  It definitely does NOT treat all people the same.  

                You can't just say "people are entitled to equal treatment."  That's simply not true.  People are entitled not to be discriminated against, based on race, ethnicity, religion, etc., (what the SCOTUS has called "suspect classes") unless government has a compelling government interest that requires such discrimination.  

                You really should not cite the Equal Protection clause without knowing anything about it.  Your statements are very misleading.  

            •  You two are arguing at cross purposes (2+ / 0-)
              Recommended by:
              Tim DeLaney, paradise50

              Equal Protection by itself has not been enough for the courts to strike down partisan gerrymanders. However, the Constitution explicitly gives Congress the authority to override states on anything to do with Federal elections (as in the Voting Rights act), including making rules for districting.

              Congress could mandate compact, contiguous, perhaps even convex districts, and could take many election functions out of the hands of partisan elected officials. It could even mandate that Secretaries of State and other high election officials not be allowed to be partisan campaign chairs, and that Attorneys-General running for Governor cannot have anything to do with election law during their campaigns. Among other shenanigans.

              Ceterem censeo, gerrymandra delenda est

              by Mokurai on Sat Oct 19, 2013 at 02:05:18 PM PDT

              [ Parent ]

              •  You make a good point. (1+ / 0-)
                Recommended by:
                paradise50

                So far, the courts have not seen fit to address gerrymandering definitively. I think that could change.

                The problem is that whatever Congress enacts, it can repeal. Judicial decisions are far more stable. Stabler yet would be a constitutional amendment. Good luck with that.

                ... but He loves you! -- George Carlin -- (-7.25, -6.21)

                by Tim DeLaney on Sat Oct 19, 2013 at 02:18:14 PM PDT

                [ Parent ]

      •  Tim - I don't think so (5+ / 0-)

        I don't think the SCOTUS can make fundamental changes in gerrymandering. That would be a real over reach by the judiciary under the Constitution, which gives the power of drawing district lines to the states. Here in CA the voters have taken the forming of district lines, for both federal and state offices, completely out of the hands of politicians. However, as johnny w. notes above voters in other states have rejected that approach. Drawing legislative districts is a state matter and the courts can only intervene if the districts are drawn in a way that they discriminate.

        One other note, it would take a constitutional amendment to restrict corporate, or any other, lobbying which is now a constitutionally protected right. There is also a balancing issue. Congress can through its legislative function economically harm a private business, including putting them out of business. I know this personally because I built a very successful business in the early 80s that was completely ended with the stroke of a pen. When a legislative body has that kind of power there has to be some way for those affected to reach the politicians and communicate their point of view.

        "let's talk about that"

        by VClib on Sat Oct 19, 2013 at 09:14:59 AM PDT

        [ Parent ]

        •  I think gerrymandering can be eliminated (1+ / 0-)
          Recommended by:
          paradise50

          on "equal protection" grounds.

          Look at the political landscape before Brown V. Board of Education. "Separate but equal" was theoretically viable, but the court, in their ruling, recognized the reality that it was inherently unequal.

          Similarly, gerrymandering could be recognized as violating the equal protection clause of the 14th amendment. Sometimes, the court must recognize reality, rather than abstract notions such as 'State's Rights'.

          ... but He loves you! -- George Carlin -- (-7.25, -6.21)

          by Tim DeLaney on Sat Oct 19, 2013 at 09:25:53 AM PDT

          [ Parent ]

          •  That makes no sense. (4+ / 0-)

            The Equal Protection clause is not grounds for challenging anything bad.  Brown v. Board of Education relied on the Equal Protection clause because government was discriminating based on race.  

            Where's the discrimination based on race, ethnicity or religion that subjects the drawing of district lines to strict scrutiny?  

            The most obvious consideration of race in drawing district lines is in creating minority-majority districts, which overwhelmingly vote Democratic.  Are you saying those are unconstitutional?  

            You can't just say "the Equal Protection clause prohibits gerrymandering." What principle prohibits states from drawing district lines so that a lot of people with the same political outlook end up in a district together?  

            I linked you above to a history of the interpretation of the Equal Protection clause.  Please read that before you make any statements about what the Equal Protection clause does, or does not, prohibit.  
             

            •  You say: (1+ / 0-)
              Recommended by:
              paradise50
              Where's the discrimination based on race, ethnicity or religion that subjects the drawing of district lines to strict scrutiny?
              Race, ethnicity and religion are the sole criteria for determining whether citizens are treated equally? I submit that this is an unnecessarily narrow view.

              Gerrymandering treats citizens unequally based on their political preference. Anybody who thinks otherwise is unaware of the motives and consequences of gerrymandering.

              Do you hold that political party X is entitled to deprive political party Y of equal participation in the electoral process? Why is this not an "equal protection" issue?

              ... but He loves you! -- George Carlin -- (-7.25, -6.21)

              by Tim DeLaney on Sat Oct 19, 2013 at 09:47:58 AM PDT

              [ Parent ]

              •  Sigh. You really need to do some reading (3+ / 0-)
                Recommended by:
                paradise50, VClib, Karma Facilitator

                about the Equal Protection Clause.  Those are called "suspect classes" and discrimination against them is subject to strict scrutiny.  

                For other kinds of discrimination, like age (we only let those 18 years old and above vote) like income (we tax people differently based on income) like your profession (we require things of certain professions/jobs and not others) like the kind of business you run (we treat different kinds of businesses differently) like whether you have children or not (you are given certain tax breaks for having children) -- the SCOTUS only uses a "rational basis" analysis.  That means that as long as government has a reason for doing what they are doing -- they aren't doing it just out of spite because they hate a group -- it is constitutional, even if their reason is something the SCOTUS thinks is a really bad reason.  

                That's a really simplistic explanation.  You really need to do some reading before you talk about what the Equal Protection clause does, or does not, prohibit.  

                •  Please, coffeetalk (1+ / 0-)
                  Recommended by:
                  paradise50

                  Can you justify treating citizens unequally based on their political preferences? Isn't this what gerrymandering is all about? Surely, you must recognize the intent and effect of gerrymandering. You are not blind.

                  Gerrymandering has the intent and effect of depriving some citizens of the effect of their vote, based solely on their political affiliation. This is an undeniable fact; it is an empirical fact. It deprives members of the opposing political party of their proper voice in determining how they are governed.

                  Based on your reasoning, why wouldn't it be constitutional for Alabama to forbid Democrats to vote? After all, they are not members of a "suspect class".

                  ... but He loves you! -- George Carlin -- (-7.25, -6.21)

                  by Tim DeLaney on Sat Oct 19, 2013 at 10:14:31 AM PDT

                  [ Parent ]

                  •  ...well I'm gonna muck it up even more... (6+ / 0-)

                    ...the electoral college makes my vote unequal (California) in value vs. a person's in Wyoming.

                    Due to population differences, a Wyoming person's vote is worth almost 6 times as much as a California voter's vote.

                    Then when you look at Senators...things become extremely un-democratic. There are 21 state who's combined populations don't equal California's population (over 37,000,000). California gets 2 Senators...those 21 states get 42 Senators.

                    It turns out the US Senate is the third least democratic political institution on the entire world!...

                    Ignorance is bliss only for the ignorant. The rest of us must suffer the consequences. -7.38; -3.44

                    by paradise50 on Sat Oct 19, 2013 at 10:22:36 AM PDT

                    [ Parent ]

                    •  That's because the Senate was not intended to be (2+ / 0-)
                      Recommended by:
                      Tim DeLaney, paradise50

                      democratic in the sense of representing the population.

                      The United States is just what its name says -- a uniting of separate political entities (states).  The House was intended to represent people.  The Senate was intended to represent those separate political entities -- the States.  

                      •  ...and the "people" the House... (0+ / 0-)

                        ...was intended to represent as envisioned by the framers, were a subset of rich, white men who owned land (or in the case of South Carolina, a minimum of slaves as was pointed out)...

                        Ignorance is bliss only for the ignorant. The rest of us must suffer the consequences. -7.38; -3.44

                        by paradise50 on Sat Oct 19, 2013 at 11:25:12 AM PDT

                        [ Parent ]

                        •  And that was changed. In the same fashion, (2+ / 0-)
                          Recommended by:
                          Karma Facilitator, paradise50

                          you can change the way we elect Senators if you can get a supermajority of the country to agree to amend the Constitution.  

                          The problem that you will have is that the Senate was designed to protect the interests of less populous states, who were concerned that their interests would be overrun by the more populous states if everything was done solely as a matter if the number of voters.  That was part of the great compromise that resulted in the Constitution -- the less populous states were only willing to surrender some sovereignty to the federal government if they had something like the Senate to make sure that the few more populous states could not simply override their interests.  

                          Those same concerns exist today in the less populous states, and would likely prevent any amendment from getting approval by 3/4 of the states.  

                  •  Sigh. I just did. Try to think logically here. (4+ / 0-)

                    The President discriminates based on political affiliation in almost everything he does.  There are lots of people qualified to be on the Supreme Court, but when the President had to fill vacancies, he discriminated against Republicans and/or conservatives.  And if he can't discriminate based on political affiliation, then does he have to treat Republicans in Congress the same as Democrats?

                    Every single member of Congress discriminates based on political affiliation when he/she hires staff.  Every.  Single.  One.  The Equal Protection Clause does not prevent government from discrimination based on political affiliation.  

                    And this is just silly:  

                    Gerrymandering has the intent and effect of depriving some citizens of the effect of their vote, based solely on their political affiliation
                    No, it does not deprive some citizens of their right to vote.  They can vote.  I think what you MEAN to say is that it makes the votes of the minority effectively meaningless, because the majority view in that district is going to prevail.  If that's you view, then I assume that you believe that any Republican living in a minority-majority district, or that is living in a blue state (like California) is having his rights violated because his votes in the Presidential election don't count?  

                    And I'm old enough to remember when, in Louisiana, the "real" election for governor was the Democratic primary, because only Democrats won the general election. (It was pretty much like that from the end of Reconstruction    until Dave Treen was elected in 1979.  I guess Republicans back then were having their rights violated, because it didn't matter who they nominated or who they voted for -- the person picked in the Democratic primary was going to win.  Is that what you are arguing?  

                    What you are essentially arguing is that we all have a right to live in a politically-defined district where people who think like us are the majority, so our vote "counts."  And of course, that's impossible.  

                    I understand your frustration with gerrymandered districts.  I have a serious problem with your argument that the Courts can address it because it's an Equal Protection violation.

                    •  Let me ask four questions: (1+ / 0-)
                      Recommended by:
                      paradise50

                      1 - Do you think that gerrymandering is a good political practice? That is, do you think it contributes to the well-being of the American people?

                      2 - If you answer "no" to question 1, then do you think it is a realistic possibility to amend the constitution?

                      3 - If you answer "no" to question 2, would you favor a SCOTUS decision that effectively ruled out gerrymandering?

                      4 - If you answer "no" to question 3, do you have a solution to the problem?

                      ... but He loves you! -- George Carlin -- (-7.25, -6.21)

                      by Tim DeLaney on Sat Oct 19, 2013 at 10:48:14 AM PDT

                      [ Parent ]

                      •  Answers. (2+ / 0-)
                        Recommended by:
                        paradise50, Justanothernyer

                        1.  No.

                        2.  Not with the present Congress and makeup of state legislatures.

                        3.  I don't see any way that can happen.  The SCOTUS is not there to fix problems.  The SCOTUS is there to tell you when things are contrary to federal law or the United States Constitution.  Period.  The Supreme Court is definitely not there to fix political problems caused because one side lost in the political process.  

                        4.  The solution is, as always in our system, winning elections.  Republicans did that in state elections in 2010, which is the reason Democrats are so unhappy with the results.  Had Democrats done a better job of winning state elections in 2010, it would be Republicans who would be so unhappy now with the drawing of Congressional districts.  

                        If you want to amend the Constitution, the solution is to get a majority of people to elect people who think like you do.  

                        The solution is winning elections.  You can't get the Supreme Court to fix problems caused by not winning elections.  

                        •  OK, but suppose that (1+ / 0-)
                          Recommended by:
                          paradise50

                          The rules, such as gerrymandering, prevent you from winning those elections? Suppose the party in power can, in effect, fix those elections? Are you saying that we are just obligated to live with it?

                          The votes for Democratic representatives greatly outnumbered the votes for Republican representatives in the last election. This was due, at least in part, to aggressive partisan gerrymandering. Do you think this is how things should be?

                          Reflect that the recent fiasco has just cost us $24 billion, arguably because of gerrymandering. Is this a good or a bad thing? Should we not look for a viable solution instead of just resigning ourselves to the obvious idiocy we are confronted with?

                          Gerrymandering has negative consequences. I argue that we should abolish it. The courts could do so, regardless of your attention to the niceties of constitutional law.

                          ... but He loves you! -- George Carlin -- (-7.25, -6.21)

                          by Tim DeLaney on Sat Oct 19, 2013 at 11:11:35 AM PDT

                          [ Parent ]

                          •  Seriously????? (4+ / 0-)
                            The courts could do so, regardless of your attention to the niceties of constitutional law.
                            You think Constitutional law is just a matter of "niceties" that the courts can ignore when they want to?  

                            Wow.  Just wow.  

                          •  May I point out? (1+ / 0-)
                            Recommended by:
                            paradise50

                            That I said YOUR niceties?

                            Not every court is obligated to agree with YOUR opinion. I know you are a lawyer, but really, your opinions are just that.

                            My opinion (which is just that also) is that if courts decided that gerrymandering violated the equal protection clause, that life would go on, and that most voters would applaud the decision. We would have a Congress that more closely reflected the will of the people.

                            I don't see that as a bad thing, in spite of your opinion.

                            ... but He loves you! -- George Carlin -- (-7.25, -6.21)

                            by Tim DeLaney on Sat Oct 19, 2013 at 12:34:42 PM PDT

                            [ Parent ]

                          •  Here's your really big problem. (1+ / 0-)
                            Recommended by:
                            paradise50

                            I provided you with a link to an explanation of the Equal Protection Clause that supported everything I said.  If you want more, there's this and here and another basic summary here.  I also relied on actual SCOTUS cases addressing drawing district lines, like Baker v. Carr.

                            Really, the things I'm telling you are very basic, first year law school stuff.  And all that backup shows it's not "just"my opinion. More importantly, Equal Protection jurisprudence is the Supreme Court's "niceties," not mine.  

                            Please provide some support for your claim that the Equal Protection clause means that states can't consider political affiliation when drawing district lines.  Something.  Anything.  

                            Yes, I'm a lawyer, and the first thing you learn in law school is you can't make up something about what you think the law ought to be and expect it to be taken seriously.  You need support.

                          •  And here's your problem: (1+ / 0-)
                            Recommended by:
                            paradise50

                            You seem to regard constitutional law as static. What is constitutional today must be true for all time. But constitutional law, is still evolving.

                            Consider the Citizens United case. Without getting into the merits of that decision, you must admit that the SCOTUS came to a decision that would have been unthinkable a generation or two ago. Yet there it is, and at least for now it's settled law.

                            Constitutional law is what a majority of Supreme court Justices say it is in any particular decision. In the nature of the process, the nine justices frequently disagree with one another.

                            In your arguments in this diary, you seem to believe that it is impossible or unthinkable that five of the nine justices could come to the conclusion that the gerrymander violates equal protection. If your view is correct, then it would follow that if a gerrymander case came to the SCOTUS, the decision would inevitably be 9-0 in favor of allowing gerrymandering. I don't think this is the case.

                            I am advocating that we Democrats appoint justices that agree with our views. I am advocating that we do this by the democratic process of winning elections so that we can appoint those justices.

                            If your view is correct, then even a Democrat appointed Supreme Court would rule that the gerrymander is perfectly constitutional, because of certain niceties that you favor. I think you are dead wrong. I think that a court with five or more liberal Justices would probably rule against a gerrymander that deliberately puts a thumb on the electoral scales.

                            If they were to rule that way, it would become constitutional, quite irrespective of your opinion. Is this not true?

                            ... but He loves you! -- George Carlin -- (-7.25, -6.21)

                            by Tim DeLaney on Sat Oct 19, 2013 at 01:52:38 PM PDT

                            [ Parent ]

                          •  Citizens United would not have been (0+ / 0-)

                            "unthinkable" a generation ago.  Read it.  It's based on other decisions, including Buckley v. Valeo, where the Supreme Court held (a generation ago, in 1976) that spending money for political speech is a form of speech protected by the First Amendment.  Supreme Court decisions are ALWAYS based on prior case law to a very large extent.  

                            The fact that you cannot point to one single authority, one single case, to support your theory shows just how wrong you are.  

                            And if you think that the Supreme Court just decides things, without basing its decisions on principles from over 200 years of prior case law, shows just how wrong you are.  

                            What I am telling you comes from a Supreme Court case in 1938,  where the Supreme Court explained in what has been called "the most famous footnote in Supreme Court history" what made a category a suspect class.  The principle has been reaffirmed dozens of times since then.   It's what we call "well settled law," and is not going to be overruled any time soon.  Not one single justice has ever in any opinion even hinted that he/she would want to overrule those principles.   The fact that you think that some future Supreme Court is just going to ignore all of that shows that you have no understanding  of Constitutional law or the Supreme Court.

                          •  You continue the same argument (0+ / 0-)

                            in spite of the evident fact that decisions are arrived at by individual justices, not vague principles.

                            And if you think that the Supreme Court just decides things, without basing its decisions on principles from over 200 years of prior case law, shows just how wrong you are.
                            So, are you suggesting that the SCOTUS could not possibly ever decide that the partisan gerrymander is unconstitutional, no matter who those justices were?

                            Your opinion notwithstanding, I think such a decision is entirely possible. If we Democrats appoint the next three or four justices, I suggest it's probable.

                            Were that to actually happen, what would be your reaction? Would you welcome a decision to abolish the partisan gerrymander, or oppose it?

                            ... but He loves you! -- George Carlin -- (-7.25, -6.21)

                            by Tim DeLaney on Sat Oct 19, 2013 at 04:05:33 PM PDT

                            [ Parent ]

                          •  Tim - two generations ago there were no (1+ / 0-)
                            Recommended by:
                            Tim DeLaney

                            campaign finance laws except the Tillman Act of 1907. It's been only since the early 1970s that there have been limits on campaign contribution. Most Court watchers thought that the SCOTUS would strike down all campaign limits in the 1976 case Buckley v Valeo (the famous money equals speech case) and were shocked when the Court upheld the issue of legal limits. Prior to Valeo many Constitutional scholars thought that limits on campaign contributions were not constitutional. In Citizens United both the majority and minority opinions borrowed significantly from Valeo. So no, Citizens United wasn't a surprise or departure from a generation or two ago. Many constitutional scholars, the ACLU, the AFL-CIO, and others said as much in their amicus briefs supporting the plaintiffs and the decision of the majority.

                            "let's talk about that"

                            by VClib on Sat Oct 19, 2013 at 04:41:01 PM PDT

                            [ Parent ]

                          •  OK, I concede that point. n/t (1+ / 0-)
                            Recommended by:
                            VClib

                            ... but He loves you! -- George Carlin -- (-7.25, -6.21)

                            by Tim DeLaney on Sat Oct 19, 2013 at 05:03:26 PM PDT

                            [ Parent ]

                  •  The Constitution does not mean what you wish (3+ / 0-)
                    Recommended by:
                    Tim DeLaney, paradise50, VClib

                    it meant. That applies to you just as much as to Republicans, and you should be thankful for that fact.

                    The exception is when the you in question is one of five on the Supreme Court that really, really, really want something badly enough to lie about the reasons for claiming that it is the law. The rest of us pretty much have to follow case law/precedent. The SC case law is that gerrymanders are generally legal (with some limitations) whenever protected rights of protected classes are not concerned, and are also specifically legal where it is claimed that gerrymanders are being created to protect those minority rights, as in the case of majority-minority districts.

                    The remedies are well known. You (for a very large value of you) can amend the Constitution (Federal or state). You can elect a President who will appoint Supreme Court Justices who agree with your judicial philosophy, and a Senate that will confirm them, or the corresponding actions in a state. You can come up with a new legal theory that current or future Supreme Court Justices (Federal or state) may find compelling. All of these have been used, with occasional success.

                    Or you can try to mount a Constitutional coup, like the recent flirtation with defaulting on the national debt, or threaten armed nullification, secession, or overthrow of the government. The record on these is not promising.

                    Ceterem censeo, gerrymandra delenda est

                    by Mokurai on Sat Oct 19, 2013 at 02:18:43 PM PDT

                    [ Parent ]

          •  Tim - I don't see the logic of that claim (1+ / 0-)
            Recommended by:
            paradise50

            or how it applies to the equal protection clause.

            "let's talk about that"

            by VClib on Sat Oct 19, 2013 at 09:42:05 AM PDT

            [ Parent ]

            •  Here is why, VClib (1+ / 0-)
              Recommended by:
              paradise50

              Gerrymandering treats citizen unequally on the basis of their political affiliation. One cannot deny this without ignoring the obvious intent and effect of gerrymandering.

              To hold otherwise would be to hold that the majority is entitled to oppress the minority.

              ... but He loves you! -- George Carlin -- (-7.25, -6.21)

              by Tim DeLaney on Sat Oct 19, 2013 at 09:54:35 AM PDT

              [ Parent ]

              •  Tim - political affilations have never been (4+ / 0-)

                and could never be, a legally protected class because individuals can change their political affiliation on a whim. The Constitution cannot protect me for something I can change arbitrarily.

                "let's talk about that"

                by VClib on Sat Oct 19, 2013 at 09:59:53 AM PDT

                [ Parent ]

              •  You need to stop. (6+ / 0-)

                First, look up the Equal Protection clause.  "Political affiliation" is not a suspect class.

                Government officials make decisions based on political affiliations every single day.  If you can't treat citizens differently based on political affiliation, then virtually every single appointment by the President of the United States is unconstitutional.  Those are almost ALL based on political affiliation.  

                •  The consequence of this: (1+ / 0-)
                  Recommended by:
                  paradise50
                  "Political affiliation" is not a suspect class.
                  seems to be that the party in power can legally and constitutionally abridge the political rights of the party not in power.

                  I hope that the judiciary would strongly disagree.

                  ... but He loves you! -- George Carlin -- (-7.25, -6.21)

                  by Tim DeLaney on Sat Oct 19, 2013 at 10:23:06 AM PDT

                  [ Parent ]

                  •  ...this ^^^^ it absolutely true... (1+ / 0-)
                    Recommended by:
                    Tim DeLaney

                    ...and only the courts can intervene. Sometimes they do and sometimes they don't...

                    Ignorance is bliss only for the ignorant. The rest of us must suffer the consequences. -7.38; -3.44

                    by paradise50 on Sat Oct 19, 2013 at 10:27:01 AM PDT

                    [ Parent ]

                  •  What political "right" is that? (2+ / 0-)
                    Recommended by:
                    paradise50, VClib

                    The party in power cannot say that people who register Democratic cannot vote.  The right to vote is a fundamental constitutional right, and the party in power cannot take that away.  But of course, gerrymandering does not take away anyone's right to vote.  For the individual, gerrymandering means that you may be in a district where your viewpoint is not the majority viewpoint.  

                    The party in power cannot take away CONSTITUTIONAL rights. But, of course, no one has a CONSTITUTIONAL right to be in a district where the majority has the same political affiliation as they do.  That would be impossible to achieve.  We all can't be in a district where we are part of the majority so our vote "counts."  

                    But this happens all the time:

                    the party in power can legally and constitutionally abridge the political rights of the party not in power.
                    Political rights are determined by politics.   When you lose elections, your side loses "political" rights.  When you lose elections, you side loses the right to pass legislation you want.   Some political rights come with a majority victory, some political rights only come with a supermajority victory.  But political rights are affected by the political process.

                    I understand your frustration with gerrymandered districts.  But gerrymandering is as old as our political system.  What has happened recently is not anything new -- it's simply MORE of what has always happened.  I understand the arguments that it's really, really bad.  But it's not a constitutional issue.

                    •  No, there is no absolute Constitutional right (0+ / 0-)

                      to vote. The Constitution was originally completely silent on that issue, leaving the qualifications of voters strictly to the states, which all originally restricted the vote to White males above a certain age who owned property of a certain value. Legislatures can and do still pass laws to take away voting rights from particular non-protected classes of people, such as felons.

                      We had to have Constitutional amendments to give ex-slaves and women any right to vote at all, but nobody else has even that much protection. Even there, it took explicit legislation to start making votes for Blacks in the South a reality, and that fight is not over.

                      Ceterem censeo, gerrymandra delenda est

                      by Mokurai on Sat Oct 19, 2013 at 02:29:15 PM PDT

                      [ Parent ]

          •  I don't even know what that means (4+ / 0-)

            To "rule out gerrymandering" would leave what principles in place to draw district lines, other than equal population per district?  What does "fair" mean?  No districts drawn to ensure Latino or African American representation?

            •  Drawing districts to ensure Latino or African (0+ / 0-)

              American representation is also gerrymandering.

              You cannot simply abolish gerrymandering, as though the evil were in the word itself. You have to provide a positive set of principles, such as compact, contiguous, even convex districts of approximately equal numbers of registered voters, drawn up by non-partisan boards and administered by non-partisan election officials who are not permitted to be campaign officials at the same time.

              Ceterem censeo, gerrymandra delenda est

              by Mokurai on Sat Oct 19, 2013 at 02:32:41 PM PDT

              [ Parent ]

            •  In theory you could require a mathematical formula (1+ / 0-)
              Recommended by:
              Adam B

              such as minimization of the sum of the perimeter of district boundaries.

              This would of course not only rule out efforts to represent particular groups but also efforts to protect incumbents.

              Of course:

              (1)  there is no constitutional basis for this;

              (2) it might or might not result in the party with the most votes winning the most seats.

    •  I've wondered about Ohio (2+ / 0-)
      Recommended by:
      Tim DeLaney, paradise50

      because it's terribly gerrymandered, and because the voters repealed an awful anti-union law by initiative. It seems like a place where the initiative process could also fix an obviously unfair districting system. This is the first I hear that it's been tried, and rejected. Sorry to hear it.

      On the other hand, the commission now drawing the maps in California was the result of three or four tries. I hope Ohio doesn't give up after just one.

      Pennsylvania and Wisconsin also are majority-blue states with bad maps.

      into the blue again, after the money's gone

      by Prof Haley on Sat Oct 19, 2013 at 10:29:08 AM PDT

      [ Parent ]

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