“The court’s legal analysis in Arizona State Legislature v. Arizona Independent Redistricting Commission was something of a reach. But the ruling’s practical implications are unequivocally positive.”
—–The Washington Post in an editorial praising the Supreme Court’s approval of Arizon’s unconstitutional solution to the persistent problem of gerrymandering abuse.
“IGNORE WHEN INCONVENIENT” Really?
The Post’s quote means nothing more nor less than “the ends justify the means.” “Something of a reach” is a shameless equivocation: John Roberts’ dissent to the 5-4 majority’s “legal analysis” —there really is none—resembles Mike Tyson slapping around Honey Boo-Boo. The decision’s argument approving the Arizona end-around the Constitution’s Elections Clause that reads, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof” can be fairly summarized as “this will work, so the Constitution be damned.” It’s not a “reach.” It’s obvious defiance of what the document says.
It that so bad? It depends on what you think is more important, integrity or solving a problem. All of the big Supreme Court decisions in the past week have essentially raised this ethics conflict, and it is clear that the liberals on the Court is on the side of solving problems—at least as they see them— even when it means compromising what the Constitution says and what the Founders intended who drafted it, with the libertarian Justice Kennedy, who tends to lean away from laws constraining citizens anyway, often joining the colleagues to his left. This issue is as stark an example as there can be,
Gerrymandering is unethical and anti-democratic. It was not foreseen by the authors of the Constitution, who can’t be expected to have predicted every devious political maneuver their successors would come up with to pollute their ideals. Unfortunately, the Constitution doesn’t provide a way for the public to stop the practice, other than electing less corrupt legislators, and legislators use gerrymandering to make that exceedingly difficult. A tweak of the wording in the Constitution could carve out an exception, but the Founders also made amending the Constitution in any way at all an almost impossible chore, including amending it to allow easier amending.
What’s a country to do? Well, sometimes the ends really do justify the means: that’s what utilitarianism means. If the Court can kill or limit gerrymandering by, as John Roberts felicitously put it in his dissent, gerrymandering the Constitution, it might be a good choice on balance. It benefits democracy. The conservatives argue, however, and legitimately so, that such a decision also creates a dangerous, even sinister precedent despite its good intentions (none of the Justices seem to think that gerrymandering is anything but unhealthy for democracy). What other laws that violate the plain words of the Constitution will the Court approve because its “practical implications are unequivocally positive,” to the cheers of partisans? How many times can the Court do this before the Constitution is a dead letter, and any executive–or despot— can claim that government action, regardless of what Constitutional guarantees oppose it, is to be rubber stamped because it solves a real problem?
That is an existential concern, and commentators like the Post who ignore it because the short-term benefits of defying the Constitution in this case pleases them are being irresponsible. This is the ethical conflict, expressed in my favorite ethics quote, from the character of Sir Thomas More in this scene from “A Man For All Seasons” (I know I’ve quoted it before: good. We should all read it to ourselves every day of our lives, or watch this clip, until it is committed to memory and etched on our souls):
Yet More is expressing an absolute, and all absolutes have exceptions. Sometimes the ends are so important that they do require a significant breach or law or ethics. Sometimes the Supreme Court’s conservatives have recognized that as well. Is gerrymandering a proper ill to justify temporarily tearing down the law to stop the Devil, risking the long-term risk of having no law at all?
I don’t know. I do know that before we cheer such a decision, we should understand its ethical and legal significance beyond the “practical implications.”
[Update: Rick Jones, one of my favorite bloggers, has an excellent post on this up now, especially helpful for its background on gerrymandering.]
Ethics Alarms 
An even more interesting solution to gerrymandering that IS constitutional and was planned for by the Founders is having a House of Representatives that is actually representative and not a 1 rep per 750,000 citizens joke.
If we were in the business of solving problems and not just adding band aids to the wound and calling that a solution (which it isn’t, so I disagree with the notion that the liberals are out to solve problems) then we’d actually reconsider what Representation really means.
“I disagree with the notion that the liberals are out to solve problems.”
If you change liberals to read professional politicians I agree.
Paraphrasing from a webcomic rule #3: They are in the business of solving problems for the public. Corollary: Creating problems for the public creates business.
But there are so many problems that already exist! Why bother creating more? Oh, right… Because artificial problems are easier to pretend to solve without doing anything. Creating problems in society lets you have a scapegoat for why the problem is never solved. It’s like professional wrestling, except both parties are the heel for the other party. We see it in mythology all the time: People love to have a face to glare at and shake a fist when stuff goes wrong, because they never learned to go after big, abstract problems themselves.
If we go by the webcomic, what we need to vanquish the status quo is a cunning strategist… from another world…
Okay, we have one of those. Now, where’s an army?
No doubt. The topic at hand insists the liberals are trying to just solve the problem whereas the conservatives only care about sanctity of the process.
If there is a way to solve a problem and preserve the process, then the argument doesn’t hold, and in regards to my statement being specifically aimed at liberals, it holds given the context.
This is a minor quibble, but I dispute the characterization of Kennedy as libertarian, since he was on the anti-liberty side of a number of issues, including eminent domain and medical marijuana. Frankly, I don’t think any convenient label applies. Semi-libertarian perhaps?
“Mediocre semi-conservative acceptable to Ted Kennedy after he slandered Robert Bork,” or MSATTKAHSRB for short. How’s that?
I see your point. 🙂
I’m curious why you think this ruling is “defiance” — to me it seems well within reason. The Arizona Constitution specifically allows the legislative function to be exercised by the people at large. That is, when voting on initiatives or referenda, the people ARE the legislature; after all, the Constitution doesn’t say anything about how states are to structure their own legislative bodies. This also throws the Chief’s 17th Amendment argument out, as the people aren’t acting as the legislature when they vote for senators, they’re acting as the electorate. And yes, people can be both, as all legislators are (unless you want to argue that individual legislators are acting in their legislative capacity when they vote in popular elections).
“The Arizona Constitution specifically allows the legislative function to be exercised by the people at large” and the U.S. Constitution does not. Guess who wins in such cases, or at least, was supposed to? “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof” just isn’t ambiguous. A State Commission isn’t a legislature.
But that’s not the issue — if Arizona’s State Legislature had delegated the task to a State Commission itself, then I don’t think anyone would have a problem. The problem is that this delegation was done not by the state’s elected legislators, but by statewide popular vote, which the state constitution explicitly contemplates as having lawmaking authority.
I guess it boils down to this — does the word Legislature, as used in the US Constitution, mean a specific body within a state, or any entity with lawmaking power in the state? I’m not saying it’s inarguable, but RBG’s reasoning that it means the latter is sound.
No, it’s not, because the clause has never been interpreted by SCOTUS that way before.
Yes it has, in Davis v. Hildebrant. There, because the popular referendum was “contained within the legislative power” of the state, a referendum nullifying congressional districts satisfied the requirement that “the times, places and manner of holding elections for Senators and Representatives shall be prescribed in each state by the legislature.”
The Constitution was written in an era when several states still operated under their royal charters (with references to the King carefully crossed out). I would assume every other state that had abandoned its charter still adopted a governor-legislature model largely emulating the previous royal charters.
The composition of the Constitution was modeled after the existing state governments, and in return, most states soon rewrote their Constitutions to emulate the federal. I would think all that occurred was generally predicted by the Constitutional Convention fathers, and that no state at that time had any intention of adopting as its “legislature” anything that did not resemble was the word was assumed to mean.
In the bulk of it, I think “legislature” in the US Constitution always meant a representative body that passed legislation. That however, the constitution of Arizona explicitly shares legislative authority between two entities breaks the implicit assumption that no state would model its legislative authority differently.
It is thus a very interesting proposition that what “legislature” is assumed to have meant, may no longer be strictly legally binding in such a unique situation. It is perhaps a conflict between two sovereign documents; the Constitutions of Arizona versus the United States. The resolution, I would proposed, would revolve around determining whether “Legislature” in the US Constitution is prescriptive, meaning that a representative body MUST choose the districts.
If prescriptive, then the choice to ignore the language is a violation of the Constitution (albeit a carefully selected and limited violation). If however the passage is descriptive, then any state constitutionally empowered body capable of law could select the districts; “legislature” was just assumed to be the form of this body.
I might suggest that the “legislature” was mandated specifically to keep the voting districts out of the gerrymandering hands of the governor; the Constitutional fathers assumed that the state legislatures would be too closely accountable to the people to succeed in any shenanigans. That they were wrong is terrifying. Would a citizen’s ballot initiative to create an independent commission be in the spirit of their intent? Perhaps.
To be fair, I don’t think the Founders anticipated states having referenda as part of their political systems either. The question of whether or not a ballot referendum counts as a piece of “legislation” is an interesting one.
Agreed.
Given what little I know about the attitudes of the Founders towards the “People”, I am inclined to say that they had no interest in trusting the “People” with the ability to decide anything. The only question in my mind is whether SCOTUS shares this same attitude. And whether the actual wording of a law or the intent of the law-makers (as perceived by SCOTUS) is what matters.
http://coloradostatesman.com/content/995840-supreme-court-sends-tabor-challenge-back-appeals-court
The Arizona Case already has a direct effect back to us in Colorado where teachers unions and democrats are trying to undo our 20 year old Taxpayer Bill of Rights.
The Constitution is already a “dead letter”, Jack.
The ideal way for gay marriage to be legalized would be for everyone to realize that it made sense and simply tell their politicians. I don’t think this was stretching the Constitution too much, but then, I don’t think we can rely on the Constitution to protect us anyway, so it’s not as big of a deal to me.
I’ve been working on designing a utopia for a good chunk of my life, if not most of it. I’ve come to the conclusion that no system of government based on the collective will of the people will function for the public good if people do not learn to be mature and responsible. It is impossible to design a democratic system of government for the general human populace and leave them alone in it and expect them not to find some way to screw it up, if they don’t develop a healthy dominant culture, which I don’t know that they’ve ever managed. The founding fathers did some pretty masterful clarification work, but no matter its crystalline elegance, no semantic structure can forever contain millions of fools.
That’s why I’m not trying to change the government directly. I’m trying to change people. This world will not survive if people are not free, but people will not survive freedom if they are not mature and responsible.
For the past five years I’ve been working on classifying all the mindsets a mature person needs to be able to use to take on the world, including the ones necessary to understand ethics. As far as I can tell, I’ve succeeded: I have a framework for clearly understanding what method of thinking a problem calls for and for developing that mindset in oneself. This is by no means a silver bullet: these mindsets have existed for as long as humankind has. The difference is that now there is an overarching system designed to help people, and through them society as a whole, develop with purpose and awareness rather than adopting simplistic goals and running with them as if fervid belief was a virtue and not a vice.
I’m now looking to build a community to encourage people to develop and use these mindsets to solve problems, and to support them while doing so. Can anyone refer me to people who share this goal and have skills they would be willing to contribute?
I’ll take that as a no.
No, take it as “I’m thinking, I’m thinking.” We should chat off site. Obviously, I hope, I share this goal, and yes, I would contribute any way I could.
Noble goals, but I think history attests to the notion that creating Utopias usually ends up killing vast swathes of the population…
That depends on what kind of utopia you’re thinking of. Actually, there were quite a few little utopian communities in the U.S. in the early 19th century. Some Amish might consider themselves to be one. Those are usually fairly harmless.
The country-wide ones do tend to get kind of dangerous, because they generally lead to imprisoning people either physically or mentally, which is the exact opposite of what I’m trying to do. Plus, I’m trying to change people’s minds directly instead of trying to exert some sort of authority over people.
Bottom line is that there are several key differences between my plan and the dangerous type of utopia, including the fact that I’m not actually picking a destination: I’m just promoting a means of advancement.
Was that John Hurt in the opening scene?
Belated attempt at commenting here:-
Readers may find the following excerpt from the Dilbert blog amusing, in both senses of the word, in that it not only exemplifies the kind of thinking this post is about but also approves of it while fully understanding what is involved:-
However, while I agree with the criticism this post is making of that kind of thinking, it does not appear to me that the excerpt from the Washington Post quoted above – by itself – necessarily shows that kind of thinking at work, that it necessarily implies the sort of “ends justify means” utilitarianism involved. The thing is, the excerpt is ambiguous; it can also be read as “every cloud has a silver lining” when it asserts that there is “something of a reach” but also that “the ruling’s practical implications are unequivocally positive”. (Of course, the rest of the article might eliminate that ambiguity, but then again it might emphasise that the Washington Post wanted to show its readers that things were indeed ambiguous – but we don’t have that to hand.)