“Looks like Kennedy (in another plurality opinion) by a nose invalidating the wacky Congressional District 23,” reports Daliah Withwick, senior editor for Slate in her Breakfast Table, A Supreme Court Conversation, speaking of the Court’s recent concurrence with a lower court’s decision on redistricting in Texas. “All else,” she goes on to say, “remains foggy, although a fast look suggests yet another insane mess of opinions in which various justices pop in and out of various portions of the opinion like a big game of constitutional whack-a-mole.”
No doubt we will hear more about this as more knowledgeable judicial analysts digest the Court’s decision in the coming days and weeks. But, no matter what We The People think, the decision stands, our consternation notwithstanding. This much is for sure, it’s going to go down in the history books as being right up there in significance with Marbury vs. Madison. Why? Because it means that there is nothing unconstitutionally (legally) wrong with gerrymandering. From now on, the ruling party can legally stack the deck, hence, the beginning of the end of true democracy in the United States.
Now, I’m no lawyer, but I can read, and I think the justices were wrong. They were right in their reading, the Constitution doesn’t specifically forbid redistricting more often than every ten years, but they were wrong in their interpretation/understanding of the Framers’ intent.
To determine the number of representatives a state shall have, the Constitution prescribes that an enumeration (census) shall be made every ten years, but no more. So it is evident to me that the Framers’ intent was that this census should be used as a guide to the process of selecting representatives.
The Constitution addresses the subject in Article I, Section 2, Clause 3: Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.) (The previous sentence in parentheses was superseded by Amendment XIV, section 2.) The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chusethree, Massachusetts eight, Rhode Island and Providence Plantations one, Connecticut five, New York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five and Georgia three.
So, what’s to become of us? Unless we stop thinking of ourselves as Democrats or Republicans and start casting our votes for the candidate(s) of our choice rather than the party of our choice, we will soon have an oligarchy (government in which all power belongs to a limited number of persons) in the United States. Hmmmm… that’s pretty much what we’ve already got, is it not? But if some balance is not restored in the Congress between conservatives and liberals in the upcoming November elections, I will have to agree with everything James Bovard says in his book, Attention Deficit Democracy.
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