- The Washington Times
Thursday, June 27, 2019


Bopping themselves on their collective head, the Supreme Court’s conservative majority ruled Thursday that gerrymandering somehow is not the province of the courts.

Why not?

Because Chief Justice John G. Roberts Jr., another Harvard law grad and an appointee of President George W. Bush, looked under his chair, in the drawers of his desk and in the history of all hitherto existing decisions on the issue.

He found nada. No constitutional standard available for determining a balanced way to draw district boundaries.

The conservative view should be that gerrymandering is bad from every legitimate aspect. Bad for Republicans, bad for Democrats and contrary to the intent of the founders — even though the Roberts court argued the founders had no original intent on the issue of protecting ourselves as a nation from our basest political instincts.

If that’s true, then why did James Madison, John Adams, Thomas Jefferson and the guys knocking back a few at the City Tavern in Philadelphia spend so much time and and ink devising the most complicated system of checks and balances in the history of governance?

Good government depends on as precise as possible feedback from election results about issues, policies and basic philosophy.

Gerrymandering befogs that by artificially perpetuating the rule of a party and its philosophy even after that party no longer represents the view of the majority or plurality in a state.

Chief Justice Roberts argues that no model exists or has been presented to the court on how to draw election-district boundaries that are not over-the-top partisan.


What really made the Supreme Court of the United States (Scotus) so fine-tuned in its decision-making as to say that rigging elections through partisan redistricting is OK if you just don’t overdo it?

The history of Scotus has been one of inventing, through creative interpretations of the Constitution, justifications for upholding laws that prima facie go well beyond any reasonable reading of the Constitution.

Yet because the outcome was needed, fair, just and long overdue, most Americans — right, center and left — approve of the decisions.


Think of the absurdity and, yes, the genius of using the Constitution’s interstate commerce clause to justify outlawing discrimination in public accommodations nationwide.

Surely that couldn’t have meant bearing discrimination even on a borough’s local bus or in township’s hardware store or a side-street greasy spoon frequented only by locals.

Ah, but what about those tires on the bus in Plum Borough, Pennsylvania? A plant in Akron, Ohio, made those tires. See? Interstate commerce!

And doesn’t the Constitution say Congress shall have the power to regulate commerce among the states? Yes.

Does the clause also say “in each state”? Well, no, not exactly. Not at all, in fact.

But the interstate commerce clause applies because the Supremes say it does.
So, yes, that logic leap was the basis for the 1964 Civil Rights Act.

Unconstitutional? Arguably.

Needed and long overdue. Yes.

Therefore, constitutional.

When National Review Editor William F. Buckley Jr., an icon for many conservatives, ran for mayor of New York in 1965, he blessed affirmative action to “make up for centuries of oppression” of blacks and said he’d clobber New York labor unions that discriminated against minorities.

Think of it this way. If Chief Justice Roberts had been on the high court in 1964 and reasoned as he now does, Scotus might have struck down the Civil Rights Act. You could argue that would be good constitutionalism and you would be right in your reasoning and woefully wrong in your outcome.

“I once believed we could evolve our way up from Jim Crow,” Mr. Buckley told Time magazine in 2004. “I was wrong. Federal intervention was necessary.”

Yes, he and the rest of us understand that the huge risk of outcome-based reasoning in Scotus decisions is you sanctify the liberal-left ideal of claiming the Constitution is a living document.

You could wind up with Scotus ruling that the legislated penalty for not buying insurance under Obamacare is constitutional because it’s a valid exercise of Congress’ constitutionally mandated power to tax.

Yes, I know that reasoning is so absurd it could never be used.

Oops. Didn’t Chief Justice Roberts use that tax argument to justify his siding with the liberal justices on the bench to save the key element in the Affordable Care Act?

The point is that at any moment in time, the Constitution is what the nine (or five) members of Scotus say it is. Period.

We argue over whether this or that decision was based on the framers’ original intent or on living-document theory. Fine.

Each side gets to make its points — in wordfights, not fistfights or worse — about the proper role of government. Much of civilized existence is necessarily about pretending there is a reality that in fact doesn’t exist.

Finally, you might want to ask Chief Justice Roberts this: How can we deplore the absurdities in the laws and execution thereof in banana republics (aka third-world feces-holes) and go on allowing partisan gerrymandering in our first-world shining city on the hill?

Psst, Mr. Chief Justice: “We can’t.”

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