Why I Can't Support the Constitutionalization of the Right Against Gerrymander

I'm a huge fan of Baker v. Carr, and all its progeny, the cases which for the first time in our nation's history subjected the apportionment process to constitutional scrutiny, and declared the fundamental principle of "one man, one vote."* I also think that there is roughly-speaking zero good reason for anything resembling the kind of gerrymandering that's standard fare these days. I'm pretty sure that if you plugged a population-distribution map into a computer, and gave it a few parameters about respect for political divisions, respect for demographic distinctions, etc. versus the desire for compactness and simpleness of form, that computer could spit out a map of equipopulous districts rather quickly. I think we ought to do that, rather than let committees of the politically-powerful draw maps to achieve various ends. And yet, I just cannot bring myself to support the idea that anything like independent, non-gerrymandered districting is required by the Constitution.

The fundamental logic behind the idea that this is a constitutional requirement, or should be anyway, is that we want the voters to choose the government, not for the government to choose the voters. A scheme of partisan gerrymandering, where the opposing party's voters have their votes diluted much as blacks had their votes diluted in old Southern maps, seems like an obvious case of one party using power to perpetuate its own power. I'm open to the idea that this is not acceptable, constitutionally speaking. But lots of gerrymanders aren't like this! They are, often, for the purposes of 'incumbent-protection.' In some states, the two parties achieve a state of detente, in which each is allowed to protect all of its incumbents, reducing the number of 'swing districts' and locking in the status quo. This seems uncool, right? We want The People to retain the power to vote their government out of office.

But here's my problem: they have that power! Voters can just vote for someone else if they want to! If a district is drawn in which Barack Obama captured 70% of the vote, with the intention of creating a "safe seat" for some Democratic incumbent to cushily occupy for all eternity, the voters of that district retain a complete right to kick that incumbent out of office if they so choose! Given that we have a fairly universal open primary arrangement in this country (and I do think there may be some sort of right to an open primary, though I'm not sure what I think about that issue), those Democrats can just vote for some other Democrat in the primary, as happened to Emmanuel Celler and Adam Clayton Powell in deepest-blue New York City. Or they could vote for some independent candidate. Or for the Republican. It's up to them. That it is highly unlikely a majority of them will decide they prefer the Republican challenger to the incumbent Democrat does not mean that their right to elect whomever they damn well please as their representative has been in any way lessened.

To put it another way, I just can't bring myself to accept that there's a right to live in a swing district. Hell, if we could define swing districts precisely that would seem to imply that voting preference couldn't change, which would make the whole notion of a right to vote kind of silly. The fact that I, and the vast majority of my fellow inhabitants of the First Congressional District of Rhode Island, have a fairly well-settled preference for the Democratic Party over the Republican Party, does not mean that our right to vote has been infringed!!!  I take about as much offense at an incumbent-protection map, like the one that governed California for the last decade, but c'mon people, it's just not an infringement of the right to vote, as malapportionment is. It's not an attempt to remove political power from members of one race, or one political faction. It's just the creation of relatively more districts which, we expect, will be won by large margins as opposed to small margins. There's no right to have roughly fifty percent of the people in your district favor each political party. So however much I might favor independent districting, I just can't conclude that it's a constitutional requirement.





*That's how the principle was phrased at the time; obviously, it should now be rendered "one human, one vote." (And yes, that's better than "person," because we don't give non-humans any votes, now do we?)

Bad Originalist Logic

Here's a kind of argument originalists tend to make about the Fourteenth Amendment that I just hate: "X was a long-standing tradition of the northern states prior to 1868, therefore the Fourteenth Amendment was clearly not originally intended/understood to prohibit X." Hello? The Fourteenth Amendment was a big, radical change to our Constitution. Arguably, as Thurgood Marshall said on the two-hundredth anniversary of the Declaration of Independence, "while the Union survived the civil war, the Constitution did not." The Fourteenth Amendment transformed our Constitution in the entirety. It is not to be presumed that a great many deeply traditional state practices were not outlawed by that Amendment, the first piece of the Constitution in history to substantively limit a state's general powers. It changed things! Its entire point was to change things!

On the Civil Rights Cases

The big holding of the Civil Rights Cases of 1883 was that the great human-rights sentence of the Fourteenth Amendment applied only to state action; that, therefore, the fifth section of that Amendment only empowered Congress to enforce those prohibitions on state action; and that, therefore, the Civil Rights Act of 1875 was unconstitutional:

It does not invest Congress with power to legislate upon subjects which are within the domain of State legislation, but to provide modes of relief against State legislation, or State action, of the kind referred to. It does not authorize Congress to create a code of municipal law for the regulation of private rights, but to provide modes of redress against the operation of State laws and the action of State officers executive or judicial when these are subversive of the fundamental rights specified in the amendment.

There are plenty of ways of arguing against this conclusion. My grandfather had a creative one, namely that the word 'citizen' in the first sentence of the Amendment is not just an empty title, but is rather rich with meaning. Part of being a citizen, he argues, is that you will be treated in the public forum on a more-or-less equal basis with your fellow-citizens. By this logic, the "state action" doctrine is simply inappropriate in these cases. I like that argument, and think it broadly correct. But one can reach the same conclusion on a rather more narrow basis, I think.*

The Return of Conservatives Who Lie

This is sort of comforting, in an odd sort of way. From Newt Gingrich, when asked if there's anything he wouldn't do to be President:

“Sure, there are lots of things that I wouldn’t do. I wouldn’t lie to the American people. I wouldn’t switch my positions for political reasons. It’s perfectly reasonable to change your position if facts change, if you see new things you didn’t see in the past. Everybody’s done that — Ronald Reagan did it.

“It’s wrong to go around and adopt radically different positions based on your need of any one election. Because then people have to ask themselves, ‘What will you tell me next time?’

He is, of course, lying. His various policy shifts from, say, 2007 to the present day on issues like a health-care mandate or a cap-and-trade scheme to address global warming has absolutely zero to do with seeing new things he didn't see in the past. Both were mainstream, conservative, market-based approaches to pressing national or global problems four years ago. Then Obama won an election, and tried to pass them both through Congress (batting 1-for-2), and now they're both evil socialism!!! So naturally Newt is now against them. That's the exact same move Romney pulled on those issues, and which Gingrich is attacking him for. So what's comforting about this? That he feels the need to lie. The words I quoted above could've been spoken by any liberal: we're all about changing our opinions when the facts change, and in fact frequently use that justification for apparent 'flip-flops' that conservatives try to accuse us of. Now we, admittedly, do a reasonably good job of living up to that ideal, or at least of trying to, something one cannot say of Newt. But at least he feels he needs to pay lip-service to the good, liberal ideal here. It's sort of like the kind of nostalgia one might have over 'compassionate conservativism': not that there actually was anything compassionate about George W. Bush's platform, but he felt he needed to say there was. Today, most Republican candidates go around trying to reassure voters that there isn't a tiny little speck of compassion in their policy positions. That's another area where Gingrich feels the need to lie, referring to his immigration policy (of allowing local citizen-boards to deport illegals on the basis of personal whimsical dislike, which is probably unconstitutional) as 'humane.' It isn't. But it's kind of nice he thinks that a humane immigration policy is still a good thing.

Eleven-Dimensional Chess After All?

I'm not going to argue policy here. Policy has been steadily getting worse since John Boehner's fingers closed around the gavel, and it is not the point of this blog post to argue whether Obama's been doing a good job of softening that blow. But consider the following: having spent the last several months mounting a broad campaign for economic stimulus (not under that name, of course) and, rather successfully, blaming Republicans for blocking said stimulus, Obama got to make a statement today criticizing Republicans for blocking efforts toward deficit reduction! This strikes me as approximately as win-win as you can get, politically (if you believe that such messaging matters at all). Policy wonks talk about how we should have deficit-financed stimulus now and fiscal consolidation later, but we need both. Well, Obama has positioned himself so that he is simultaneously the ardent champion of "stimulus NOW!" and the stalwart defender of "fiscal responsibility over the long-term," with the wicked Republicans his antagonists in both conflicts. Personally I'm inclined to think that this kind of messaging matters a tiny little bit around the margins, but that could be important in a close election (and I don't think that Obama's going to lose in anything other than a close election). Given how predictable it was that a) the Supercommittee would fail, and b) Republicans would bitch about actually having to let the defense cuts get triggered, it sort of makes you wonder whether he meant for this to happen.

Originalism and Relativism

You wouldn't really think that Justice Antonin Scalia is someone who buys deep into relativism, would you? I think he has a pretty clear notion that some ideas or cultures are just better or more correct than others. But it just occurred to me that a big part of his argument for originalism, or his version of it anyway, depends on an assumption of relativism, or even an assumption of an assumption of relativism. (Note: I'm defining relativism to mean the denial that truth can have meaning independent of people's beliefs.) In discussing "faint-hearted" originalism, the notion that the doctrine may sometimes suggest results too severe to contemplate, Scalia uses the example of the Eighth Amendment, saying that there might be some punishments that even judges who view themselves as originalists would find unconstitutional even if it could be definitively shown that in 1791 they were not considered cruel or unusual, such as public flogging or branding. Here's his quote on how to justify that faint-heartedness:

One way of doing so, of course, would be to say that it was originally intended that the cruel and unusual punishment clause would have an evolving content—that “cruel and unusual” originally meant “cruel and unusual for the age in question” and not “cruel and unusual in 1791.”

Notice here that he thinks the only options are "viewed as cruel and unusual when this clause was enacted" and "viewed as cruel and unusual when this clause is being applied." For anyone except a relativist, it would seem that there would be a third option: "actually cruel and unusual"! There is a damn good reason why he avoids this option: because it gives a lot of validity to the "evolutionary" or "living" reading of the Constitution.

Ways to Divvy Up Runs Above Replacement

Baseball-reference's formula for runs above replacement for a position player involves adding together several run values: runs above average from batting, runs above average from baserunning, runs above average from reaching on error, runs above average from not-grounding-into-double-plays, runs above average from fielding, positional-adjustment runs, and replacement-level runs. Add these up and you get Runs Above Replacement; divide by (roughly) ten and you get Wins Above Replacement. They also give a rough division of these into oWAR (offensive WAR) and dWAR (defensive WAR), where dWAR is just runs above average from fielding divided by (roughly) ten and oWAR is just the rest. That's one way to divide up the various categories of Runs Above Replacement, but it doesn't strike me as being in any sense the best one. Here are some alternatives.