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071119ho-edit-cartoon-gerrymandering

I think they got it wrong. Both sides got it wrong

I am writing, of course, about the most recent U.S. Supreme Court decision regarding the issue of gerrymandering and whether the extreme partisan drawing of legislative districts was permissible or not.

Writing for the majority, Chief Justice John Roberts held that the practice was permissible and, if it was not, then it was up to either the states or the Congress to take corrective action. The decision was 5-4 with Roberts siding with the conservative wing of the Court in reaching his decision. The four liberal members were in the minority, and Justice Elena Kagan penned what has been described as a “strong” dissent.

In theory, the court was expected to wrap the decision around the 14th Amendment to the Constitution. Since most of us don’t walk around carrying a copy of the Constitution and the amendments to it in our hip pocket or purse, let me remind you what that and the Thirteenth and Fifteenth provide.

They were enacted after the close of the Civil War to ensure that the first 10 amendments, known as the Bill of Rights, were followed in the confederate states, now again subject to the federal government’s jurisdiction. The Thirteenth abolished slavery and the Fifteenth simply stated that the right to vote could not be “denied or abridged on account of race, color or previous condition of servitude.”

But the Fourteenth was the key because it directly addressed the fact that all the provisions of the first 10 applied to all citizens in every state, declaring that none could be denied life, liberty, or property, without due process of law, including the right to vote.

The chief justice wrote that partisan redistricting and gerrymandering claims may come before the court, “but the Constitution does not require proportional representation and federal courts are neither equipped nor authorized to apportion political power as a matter of fairness.”

Astounding! Leaving it up to the states to enforce a provision of the federal Constitution is something I would have expected to hear in 1830 but not 2019.

At least Justice Kagan started in the right direction. “For the first time in the nation’s history,” she wrote, ”The majority declares that it can do nothing about an acknowledged constitutional violation because it has searched high and low and cannot find a workable legal standard to apply.” She then goes on to recite case after case where both federal and state courts have found standards that match closely to the goal of one person, one vote.

Noah Feldman, a Bloomberg Opinion columnist and professor at Harvard University, found favor with the decision for a different reason, writing in an article published in last week’s Courier that the course the chief justice chose was prudent because it avoided interjecting itself into highly controversial actions.

What I find most troubling about the decision is the court’s reliance for a state to solve a constitutional problem the state created. For years preceding the Civil War there were two doctrines that Southern states advocated. The first was nullification and the second was states rights. Both were reasons that the three amendments mentioned here were enacted. The first was held to mean that in response to federal demands, the state could simply ignore the law. The second, which saw a resurrection between roughly the 1940s and the 1960s with the candidacies for president of individuals like Sen. Strom Thurmond and Gov. George Wallace, simply allowed the state to enact their own legislative solutions to perceived problems. Nullification went the way of the Civil War. I am thinking that states rights just got a breath of life from the very conservative members of this Supreme Court.

I think, as time marches upon us, you will see this court more and more defer to state legislatures the issues that raise significant constitutional questions. In other words, a state violating a constitutional provision will itself resolve whether they actually did or not.

Until now, the power to enforce the Constitution was the federal courts.

Anybody want to bet what they are going to do when the issue of a woman’s right to make her own health care decision comes up for decision by the nation’s highest court?

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Dave Nagle is a Waterloo attorney and former U.S. congressman.

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