SCOTUS in 5 to 4 decision rule "Fuck democracy"

[James Madison]

It’s odd you make no argument as to why the two are so parallel as to render the differences irrelevant, thereby permitting the tests used in OTHER contexts.

But here is the difference between partisan gerrymandering and the cases addressing race based/lack of appropriate proportional representation at the State level.

First, under the EPC, laws and government action based on race or having a disparate impact strike at the core of the EPC. The 14th and 15th Amendments have as their impetus, although not the exclusive impetus, racial discrimination in general but also specifically racial discrimination in regards to voting. Racial discrimination by the States, including in regards to the vote, was a scourge the amendments were conceived to address.

The EPC wasn’t conceived to address partisan gerrymandering, which has a long history, preceding the existence of the American Republic. Indeed, the founding fathers and framers were aware of partisan gerrymandering. They produced a Constitution that didn’t abolish the practice or address it.

The term was identified and coined in 1812. Well after the constituition was ratified in 1787 (25 years) That's a long time. Ben Franklin died in 1790. But even then, gerrymandering was often of a different sort where the party who draws the lines tried to redistrict a popular opponent incumbent's residence into an unfamiliar district to thwart their incumbent momentum. Not all gerrymandering is the same and so even these founders 25 years later may not have been concentrating on partisan gerrymandering.

Instead, the founders and framers participated in and advocated for the practice of partisan gerrymandering.

(Citation Needed)

The generation who gave us the 14th Amendment didn’t perceive partisan gerrymandering to be a problem to ever be addressed by the EPC. Instead, partisan gerrymandering was a widely known and accepted practice by the time the 14th Amendment was passed. There wasn’t a hint that the EPC was understood by anyone to address partisan gerrymandering or that partisan gerrymandering implicated any part of the 14th Amendment, unlike race.

The problem has always been that politicians don't care about gerrymandering! Because the ones who gerrymander are the ones who stay in power! The people of the 1860s had bigger fish to fry, but that doesn't mean that partisan gerrymandering isn't worth frying, or that it isn't fryable.

The cases dealing with State proportional representation is very different than partisan gerrymandering. In a direct democracy, each person personally votes and their ballot is counted, and the majority vote talley prevails, consistent with majoritarian rule. A representative government, like the U.S., isn’t a direct democracy but in an attempt to adhere to the notion of majority rule, the greater number of people are entitled to a greater number of representatives, the latter constituting as a greater number of votes reflecting the greater number of people.

So, if it’s 1 rep for 10 people, and NYC has 100 people, then they should have 10 reps. Whereas a town with 10 people should have only 1 rep. This arrangement is in keeping with the principle of majoritarian rule.

What happened in Baker v Carr and Reynolds v Sims is the least populace parts of the States had more votes in the legislature since they had more reps in the legislature then the more populace parts of the States. This imbalance struck at the core of majoritarian representation.

Yeah, we agree that this part isn't directly applicable to partisan gerrymandering, except that the intuitive sense of justice that informs it is the exact same intuitive sense of justice that informs the rejection of partisan gerrymandering.

Partisan gerrymandering doesn’t and isn’t based upon majoritarian rule reflected through X number of representatives. Partisan gerrymandering isn’t about diluting reps in relation to the people, but instead is about giving candidates from a particular party an advantage by placing more people of a particular party in a district by the redrawing of district lines. The number of reps to the population is still mathematically sound constitutionally, and the fact the people in the district may be represented by more people of a different party doesn’t disturb the majoritarian principle.

That is what Roberts was getting at.

And that's fine. Moving on.

Partisan gerrymandering claims DON'T ask for a fair share of political power and influence! They ask for non-discrimination based on association with political parties.

This ignores an inherent feature of a claim of discrimination. A discrimination claim is to allege UNFAIR treatment in relation to someone or something or both!

How do you not see unfair treatment. People exercise their 1st ammendment rights to free speech and association by declaring themselves members of a political party. Government entities then conspire to deliberately nullify the impact of those people's votes by either cracking or packing their votes into districts based on their declared association with a political party. It works exactly the same as the racial gerrymandering discrimination. It boils down to politicians choosing to disenfranchise voters based on their declared preferences. Certainly that is a violation of the 1st ammendment. Well, that is exactly what gerrymandering aims to do and accomplishes.

If of any voter in that state who had in the past 10 years declared their party affiliation as "Republican." What part of the constituition would used by the USSC to strike that bill down?

You know that good stuff guaranteed and protected by the 1st ammendment?

The partisan gerrymandering the founding and framing generation engaged in and didn’t understand to implicate any part of the 1st Amendment? Okay.

Yeah, the founders were perfect psychics and political savants who were able to predict and anticipate every problem the constitution might encounter. That's why the supreme court has been busy every year for the past 232 years and we only have 27 amendments to the constitution. This incredulous attitude is unwarranted. That transgressions have gone unpunished and uncorrected in the past is no reason to ignore them in the present.

(Citation Needed)

It’s in the damn majority. Try reading it.

The term was identified and coined in 1812. Well after the constituition was ratified in 1787 (25 years) That's a long time.

If only labels, or the lack of them, made a compelling point. The practice preceded the Constitution, the practice existed during ratification, and the practice persisted after ratification. The fact Webster’s Dictionary had not baptized the practice with a formal christening years later is irrelevant to my point.

But even then, gerrymandering was often of a different sort where the party who draws the lines tried to redistrict a popular opponent incumbent's residence into an unfamiliar district to thwart their incumbent momentum. Not all gerrymandering is the same and so even these founders 25 years later may not have been concentrating on partisan gerrymandering.

Oh? Partisan gerrymandering then is different than now? How so? I’m especially intrigued since Roberts referenced to a specific instance of partisan gerrymandering in the 1790s that is parallel to today’s! It doesn’t take much time to perform a simple Google search and find scholarly articles discussing partisan gerrymandering in England, a practice inherent from England and practiced on this soil prior to, during, and after ratification of the U.S. Constitution.

The people of the 1860s had bigger fish to fry, but that doesn't mean that partisan gerrymandering isn't worth frying, or that it isn't fryable.

Completely besides the point. “Fry” partisan gerrymandering at the State level, the U.S. Constitution doesn’t have a remedy for the judiciary to invoke. That’s the point and your Hell’s Kitchen metaphors to cooking do not refute this point.

the intuitive sense of justice

What the hell is the above? Is that a tickle in the genitals? I’ve heard of this before, Plato’s idea of universal forms, John Locke, CA Lewis and others had an idea that there exists in most of us an internal moral compass of what is right and wrong, your “intuitive” bull crap, essentially a damn Jiminy Cricket guiding us as to what is fair, just, equitable, right, and wrong. It’s a damn bad argument.

Your “intuition” of what is just may not be the same as mine or a vast majority of people, which is to say that a stupendously stupid approach for the judiciary to follow. What the law says shouldn’t be up to what each subjective Jiminy Cricket whispers in the ears of each individual judge or justice. It’s also a fantastically moronic approach to interpret the Constitution. Interpretation of what the law says shouldn’t be based upon “intuition,” as no one person’s intuition is inherently better or superior than anyone else’s, and given that fact intuition shouldn’t be the basis of what the law says.

How do you not see unfair treatment.

You said this wasn’t about “fairness,” and my reply was to show the issue is about fairness. My point is the Constitution doesn’t provide a remedy to address this issue of fairness.

It boils down to politicians choosing to disenfranchise voters based on their declared preferences. Certainly that is a violation of the 1st ammendment. Well, that is exactly what gerrymandering

No one is being denied the right to vote or cast a ballot. Neither is partisan gerrymandering the equivalent of effectively precluding the casting of a ballot. Second, the freedom of association is not infringed upon as people may and continue to freely associate with and join any political party.

if the Nevada Senate passed a bill, signed by the govenor, nullifying the voting rights

Partisan gerrymandering doesn’t “nullify” voting rights, so your non-parallel example isn’t persuasive.

Yeah, the founders were perfect psychics

Whether they were Pythias in the temple is irrelevant. The fact is the Constitution doesn’t provide a remedy for the judiciary to use.

That transgressions have gone unpunished and uncorrected in the past is no reason to ignore them in the present.

The majority opinion doesn’t say those “transgressions” need to be presently ignored. Rather, the majority opinion says the Constitution doesn’t afford a remedy and the political branches, Congress, State legislatures, is the proper venue for relief.


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[Angra Mainyu]

What the hell is the above? Is that a tickle in the genitals? I’ve heard of this before, Plato’s idea of universal forms, John Locke, CA Lewis and others had an idea that there exists in most of us an internal moral compass of what is right and wrong, your “intuitive” bull crap, essentially a damn Jiminy Cricket guiding us as to what is fair, just, equitable, right, and wrong. It’s a damn bad argument.

Your “intuition” of what is just may not be the same as mine or a vast majority of people, which is to say that a stupendously stupid approach for the judiciary to follow. What the law says shouldn’t be up to what each subjective Jiminy Cricket whispers in the ears of each individual judge or justice. It’s also a fantastically moronic approach to interpret the Constitution. Interpretation of what the law says shouldn’t be based upon “intuition,” as no one person’s intuition is inherently better or superior than anyone else’s, and given that fact intuition shouldn’t be the basis of what the law says.

While you are mostly correct in this thread, that is a bad reply. Take, for example, a criminal case. Has guilt been established beyond a reasonable doubt? Well, the judge(s) of fact will have to make an assessment, using their own intuitive epistemic sense, to assess whether the probability that the defendant is guilty on the basis of the available (and legally allowed) information is so high that it is beyond a reasonable doubt that he did it.

But moreover, take a case of constitutional interpretation. Sometimes, Justices have to make assessments about the meaning of the words at the time the constitution was written. For that, they rely on different lines of evidence, but then, they need to make their own intuitive assessment as to the probability that the meaning is such-and-such, etc.

Generally, there is no escaping that in any human activity, whether legal interpretation or anything else.

As for the intuitive sense of justice, that too is at play, if not in that particular case, sometimes in court rulings. Take, for example, the case of cruel and unusual punishment:
https://constitution.laws.com/the-supreme-court/cruel-and-unusual-punishment

From this case, four principles were developed by Justice Brennan in examining the possibility of capital punishment and what constitutes cruel and unusual punishment:
1) The punishment cannot be degrading to human dignity in the case of torture.
2) A severe punishment inflicted in a completely arbitrary manner.
3) A punishment that is largely rejected throughout society.
4) A severe punishment which is “patently unnecessary.”

https://en.wikipedia.org/wiki/Cruel_and_unusual_punishment

In Furman v. Georgia, 408 U.S. 238 (1972), Justice Brennan wrote, "There are, then, four principles by which we may determine whether a particular punishment is 'cruel and unusual'."

The "essential predicate" is "that a punishment must not by its severity be degrading to human dignity", especially torture.
"A severe punishment that is obviously inflicted in wholly arbitrary fashion." (Furman v. Georgia temporarily suspended capital punishment for this reason.)
"A severe punishment that is clearly and totally rejected throughout society."
"A severe punishment that is patently unnecessary."

And he added: "The function of these principles, after all, is simply to provide means by which a court can determine whether a challenged punishment comports with human dignity. They are, therefore, interrelated, and, in most cases, it will be their convergence that will justify the conclusion that a punishment is "cruel and unusual."

Sure, some of the criteria require assessing what is common in society - which, as usual, requires the use of one's epistemic sense or intuition in order to make a probabilistic assessment -, but others require assessments of justice, which people do by their own sense of right and wrong.

 

[zorq]

(Citation Needed)

It’s in the damn majority. Try reading it.

No, show me where the founders endorsed partisan gerrymandering specifically. Because they didn't. Defend your words or retract them.

The term was identified and coined in 1812. Well after the constituition was ratified in 1787 (25 years) That's a long time.

If only labels, or the lack of them, made a compelling point. The practice preceded the Constitution, the practice existed during ratification, and the practice persisted after ratification. The fact Webster’s Dictionary had not baptized the practice with a formal christening years later is irrelevant to my point.

But even then, gerrymandering was often of a different sort where the party who draws the lines tried to redistrict a popular opponent incumbent's residence into an unfamiliar district to thwart their incumbent momentum. Not all gerrymandering is the same and so even these founders 25 years later may not have been concentrating on partisan gerrymandering.

Oh? Partisan gerrymandering then is different than now? How so? I’m especially intrigued since Roberts referenced to a specific instance of partisan gerrymandering in the 1790s that is parallel to today’s! It doesn’t take much time to perform a simple Google search and find scholarly articles discussing partisan gerrymandering in England, a practice inherent from England and practiced on this soil prior to, during, and after ratification of the U.S. Constitution.

Check your reading comprehension. There are many different strategies for gerrymandering and some of them don't involve partisan gerrymandering at all. When the founders generation thought about gerrymandering there is no reason for them to have been thinking about partisan gerrymandering in particular. And it is rather difficult to think about gerrymandering when the concept hasn't been labeled or popularized. You seem to be insisting that all the founders agreed that partisan gerrymandering was a great thing to include in a democratic republic when we all know that just isn't the case.

The people of the 1860s had bigger fish to fry, but that doesn't mean that partisan gerrymandering isn't worth frying, or that it isn't fryable.

Completely besides the point. “Fry” partisan gerrymandering at the State level, the U.S. Constitution doesn’t have a remedy for the judiciary to invoke. That’s the point and your Hell’s Kitchen metaphors to cooking do not refute this point.

I am not deviating from the point, you are merely missing mine. Your point was that partisan gerrymandering wasn't a big deal for the founder's generation and it wasn't a big deal for the generation who fought the civil war so it therefore must not be a big deal. I was directly responding to your comments. When you insist that "the generation that produced the EPC didn't perceive the problem," It is worth noting that they may have perceived the problem but chose to focus on more significant injustices. The were quite busy trying to fix institutionalized discrimination based on race without throwing the country back into another violent revolt. This, again, does not indicate that partisan gerrymandering is not an injustice or contrary to democracy.

the intuitive sense of justice

What the hell is the above? Is that a tickle in the genitals? I’ve heard of this before, Plato’s idea of universal forms, John Locke, CA Lewis and others had an idea that there exists in most of us an internal moral compass of what is right and wrong, your “intuitive” bull crap, essentially a damn Jiminy Cricket guiding us as to what is fair, just, equitable, right, and wrong. It’s a damn bad argument.

Your “intuition” of what is just may not be the same as mine or a vast majority of people, which is to say that a stupendously stupid approach for the judiciary to follow. What the law says shouldn’t be up to what each subjective Jiminy Cricket whispers in the ears of each individual judge or justice. It’s also a fantastically moronic approach to interpret the Constitution. Interpretation of what the law says shouldn’t be based upon “intuition,” as no one person’s intuition is inherently better or superior than anyone else’s, and given that fact intuition shouldn’t be the basis of what the law says.

You ignore the fact that the founders fought the war of independence based largely on their own "sense of justice." The same founders wrote the constitution from scratch based on that same sense of justice, coupled with English law and common law, and inspiration from other renaissance/englightenment thinkers.

You were going on and on about majoritarian rule. You were insisting that given two groups with the same number of people they ought to have the same number of representatives. And two groups with vastly different numbers of people ought not to have the same number of representatives. The group with the larger number of people ought to have a larger number of representatives. That's majority rule. But what is the idea of majority rule based on, eh? Why do we consider it a fair arrangement for the majority to have more influence and the minority to have less? Let me whisper the answer your ear... sense of justice...

It's a real thing. As Angra Mainyu has pointed out (thank you), justices are forced to rely on it on occasion. And deep down, I know you understand that when partisan gerrymandering takes influence from the majority and gives it to the minority that it violates majoritarian rule and our collective sense of justice, just like it did in Baker vs. Carr.

BTW, even the case we are talking about here, Rucho v. Common Cause, mentions the "general sense of fairness."

How do you not see unfair treatment.

You said this wasn’t about “fairness,” and my reply was to show the issue is about fairness. My point is the Constitution doesn’t provide a remedy to address this issue of fairness.

(sigh) Discrimination is always about fairness. I said it's not about asking for a fair share of political power and influence with respect to political parties. It's about the fairness of effectively disenfranchising individuals based on their previously declared speech and actions.

It boils down to politicians choosing to disenfranchise voters based on their declared preferences. Certainly that is a violation of the 1st amendment. Well, that is exactly what gerrymandering

No one is being denied the right to vote or cast a ballot. Neither is partisan gerrymandering the equivalent of effectively precluding the casting of a ballot.

Racial gerrymandering doesn't effectively preclude the casting of a ballot either. So maybe that isn't the point.

Second, the freedom of association is not infringed upon as people may and continue to freely associate with and join any political party.

if the Nevada Senate passed a bill, signed by the governor, nullifying the voting rights

Partisan gerrymandering doesn’t “nullify” voting rights, so your non-parallel example isn’t persuasive.

No, it only nullifies voting influence. But that is more significant. People vote all the time in 3rd world dictatorships. But only the votes that are counted count.

My hypothetical of literally disenfranchising those who engage in partisan political speech and association has the same motive and the same outcome as partisan gerrymandering. The motive is to reduce the influence of voters with declared preferences on democratic elections. Redistricting based on racial identity has been ruled unconstitutional because it is discriminatory in violation of the 14th amendment. Redistricting based on declared political preference and association is unconstitutional because it is discriminatory in violation of the 1st amendment. If you need me to draw the parallel a little closer for you I'll quote Allen v. State Board of Elections. Mississippi and other states were clearly engaging in unacceptable racist mischief that, as the Court put it, could "nullify" the ability of black voters "to elect the candidate of their choice just as would prohibiting some of them from voting."

If you refuse to see the parallel between direct disenfranchisement and redistricting, it's a relief that some USSC justices weren't so blind.

Yeah, the founders were perfect psychics

Whether they were Pythias in the temple is irrelevant. The fact is the Constitution doesn’t provide a remedy for the judiciary to use.

The remedy is to disallow discrimination based on 1st amendment protected speech and association.

That transgressions have gone unpunished and uncorrected in the past is no reason to ignore them in the present.

The majority opinion doesn’t say those “transgressions” need to be presently ignored. Rather, the majority opinion says the Constitution doesn’t afford a remedy and the political branches, Congress, State legislatures, is the proper venue for relief.

The court has chosen to ignore the issue. Congress and the state legislatures are the perpetrators of these transgressions. There is no relief in sight.

 

[James Madison]

SCOTUS in 5 to 4 decision rule "Fuck democracy"

While you are mostly correct in this thread, that is a bad reply. Take, for example, a criminal case. Has guilt been established beyond a reasonable doubt? Well, the judge(s) of fact will have to make an assessment, using their own intuitive epistemic sense, to assess whether the probability that the defendant is guilty on the basis of the available (and legally allowed) information is so high that it is beyond a reasonable doubt that he did it.

But moreover, take a case of constitutional interpretation. Sometimes, Justices have to make assessments about the meaning of the words at the time the constitution was written. For that, they rely on different lines of evidence, but then, they need to make their own intuitive assessment as to the probability that the meaning is such-and-such, etc.

Generally, there is no escaping that in any human activity, whether legal interpretation or anything else.

As for the intuitive sense of justice, that too is at play, if not in that particular case, sometimes in court rulings. Take, for example, the case of cruel and unusual punishment:
https://constitution.laws.com/the-supreme-court/cruel-and-unusual-punishment

https://en.wikipedia.org/wiki/Cruel_and_unusual_punishment

In Furman v. Georgia, 408 U.S. 238 (1972), Justice Brennan wrote, "There are, then, four principles by which we may determine whether a particular punishment is 'cruel and unusual'."

The "essential predicate" is "that a punishment must not by its severity be degrading to human dignity", especially torture.
"A severe punishment that is obviously inflicted in wholly arbitrary fashion." (Furman v. Georgia temporarily suspended capital punishment for this reason.)
"A severe punishment that is clearly and totally rejected throughout society."
"A severe punishment that is patently unnecessary."

And he added: "The function of these principles, after all, is simply to provide means by which a court can determine whether a challenged punishment comports with human dignity. They are, therefore, interrelated, and, in most cases, it will be their convergence that will justify the conclusion that a punishment is "cruel and unusual."

Sure, some of the criteria require assessing what is common in society - which, as usual, requires the use of one's epistemic sense or intuition in order to make a probabilistic assessment -, but others require assessments of justice, which people do by their own sense of right and wrong.

that is a bad reply.

No, the bad reply is you are addressing a point of view I’ve never contested.

Your two examples, a criminal case, and Constitutional interpretation, are both instances where intuition is specifically limited, whereas Zorq’s invocation of “intuitive justice” had no such limitations.

In criminal law, the legal requirements of burden of proof, presumption of innocence, and proof beyond a reasonable doubt, exist to limit the intuition of the jury. This is unlike Zorq’s “intuitive justice” which included no limitations.

Your Constitutional example, with a reference to original meaning/textualism, also has restraints on intuition of the justice/judge. The restraint is the original/textual meaning, unlike Zorq’s unrestrained “intuitive justice.”

Yes, some degree of “intuition” may necessarily exist, but I never said otherwise. Instead, I was only addressing Zorq’s “intuitive justice” which referenced to no restraints other than, as stated, the mere intuition of the individual.

Of course, those restraints should exist in those two examples you gave precisely and exactly because intuition itself is not a proper basis for the judiciary to determine what the law says.




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[James Madison]

No, show me where the founders endorsed partisan gerrymandering specifically. Because they didn't. Defend your words or retract them.

The term was identified and coined in 1812. Well after the constituition was ratified in 1787 (25 years) That's a long time.

If only labels, or the lack of them, made a compelling point. The practice preceded the Constitution, the practice existed during ratification, and the practice persisted after ratification. The fact Webster’s Dictionary had not baptized the practice with a formal christening years later is irrelevant to my point.

But even then, gerrymandering was often of a different sort where the party who draws the lines tried to redistrict a popular opponent incumbent's residence into an unfamiliar district to thwart their incumbent momentum. Not all gerrymandering is the same and so even these founders 25 years later may not have been concentrating on partisan gerrymandering.

Oh? Partisan gerrymandering then is different than now? How so? I’m especially intrigued since Roberts referenced to a specific instance of partisan gerrymandering in the 1790s that is parallel to today’s! It doesn’t take much time to perform a simple Google search and find scholarly articles discussing partisan gerrymandering in England, a practice inherent from England and practiced on this soil prior to, during, and after ratification of the U.S. Constitution.

Check your reading comprehension. There are many different strategies for gerrymandering and some of them don't involve partisan gerrymandering at all. When the founders generation thought about gerrymandering there is no reason for them to have been thinking about partisan gerrymandering in particular. And it is rather difficult to think about gerrymandering when the concept hasn't been labeled or popularized. You seem to be insisting that all the founders agreed that partisan gerrymandering was a great thing to include in a democratic republic when we all know that just isn't the case.

The people of the 1860s had bigger fish to fry, but that doesn't mean that partisan gerrymandering isn't worth frying, or that it isn't fryable.

Completely besides the point. “Fry” partisan gerrymandering at the State level, the U.S. Constitution doesn’t have a remedy for the judiciary to invoke. That’s the point and your Hell’s Kitchen metaphors to cooking do not refute this point.

I am not deviating from the point, you are merely missing mine. Your point was that partisan gerrymandering wasn't a big deal for the founder's generation and it wasn't a big deal for the generation who fought the civil war so it therefore must not be a big deal. I was directly responding to your comments. When you insist that "the generation that produced the EPC didn't perceive the problem," It is worth noting that they may have perceived the problem but chose to focus on more significant injustices. The were quite busy trying to fix institutionalized discrimination based on race without throwing the country back into another violent revolt. This, again, does not indicate that partisan gerrymandering is not an injustice or contrary to democracy.

the intuitive sense of justice

What the hell is the above? Is that a tickle in the genitals? I’ve heard of this before, Plato’s idea of universal forms, John Locke, CA Lewis and others had an idea that there exists in most of us an internal moral compass of what is right and wrong, your “intuitive” bull crap, essentially a damn Jiminy Cricket guiding us as to what is fair, just, equitable, right, and wrong. It’s a damn bad argument.

Your “intuition” of what is just may not be the same as mine or a vast majority of people, which is to say that a stupendously stupid approach for the judiciary to follow. What the law says shouldn’t be up to what each subjective Jiminy Cricket whispers in the ears of each individual judge or justice. It’s also a fantastically moronic approach to interpret the Constitution. Interpretation of what the law says shouldn’t be based upon “intuition,” as no one person’s intuition is inherently better or superior than anyone else’s, and given that fact intuition shouldn’t be the basis of what the law says.

You ignore the fact that the founders fought the war of independence based largely on their own "sense of justice." The same founders wrote the constitution from scratch based on that same sense of justice, coupled with English law and common law, and inspiration from other renaissance/englightenment thinkers.

You were going on and on about majoritarian rule. You were insisting that given two groups with the same number of people they ought to have the same number of representatives. And two groups with vastly different numbers of people ought not to have the same number of representatives. The group with the larger number of people ought to have a larger number of representatives. That's majority rule. But what is the idea of majority rule based on, eh? Why do we consider it a fair arrangement for the majority to have more influence and the minority to have less? Let me whisper the answer your ear... sense of justice...

It's a real thing. As Angra Mainyu has pointed out (thank you), justices are forced to rely on it on occasion. And deep down, I know you understand that when partisan gerrymandering takes influence from the majority and gives it to the minority that it violates majoritarian rule and our collective sense of justice, just like it did in Baker vs. Carr.

BTW, even the case we are talking about here, Rucho v. Common Cause, mentions the "general sense of fairness."

How do you not see unfair treatment.

You said this wasn’t about “fairness,” and my reply was to show the issue is about fairness. My point is the Constitution doesn’t provide a remedy to address this issue of fairness.

(sigh) Discrimination is always about fairness. I said it's not about asking for a fair share of political power and influence with respect to political parties. It's about the fairness of effectively disenfranchising individuals based on their previously declared speech and actions.

It boils down to politicians choosing to disenfranchise voters based on their declared preferences. Certainly that is a violation of the 1st amendment. Well, that is exactly what gerrymandering

No one is being denied the right to vote or cast a ballot. Neither is partisan gerrymandering the equivalent of effectively precluding the casting of a ballot.

Racial gerrymandering doesn't effectively preclude the casting of a ballot either. So maybe that isn't the point.

Second, the freedom of association is not infringed upon as people may and continue to freely associate with and join any political party.

if the Nevada Senate passed a bill, signed by the governor, nullifying the voting rights

Partisan gerrymandering doesn’t “nullify” voting rights, so your non-parallel example isn’t persuasive.

No, it only nullifies voting influence. But that is more significant. People vote all the time in 3rd world dictatorships. But only the votes that are counted count.

My hypothetical of literally disenfranchising those who engage in partisan political speech and association has the same motive and the same outcome as partisan gerrymandering. The motive is to reduce the influence of voters with declared preferences on democratic elections. Redistricting based on racial identity has been ruled unconstitutional because it is discriminatory in violation of the 14th amendment. Redistricting based on declared political preference and association is unconstitutional because it is discriminatory in violation of the 1st amendment. If you need me to draw the parallel a little closer for you I'll quote Allen v. State Board of Elections. Mississippi and other states were clearly engaging in unacceptable racist mischief that, as the Court put it, could "nullify" the ability of black voters "to elect the candidate of their choice just as would prohibiting some of them from voting."

If you refuse to see the parallel between direct disenfranchisement and redistricting, it's a relief that some USSC justices weren't so blind.

Yeah, the founders were perfect psychics

Whether they were Pythias in the temple is irrelevant. The fact is the Constitution doesn’t provide a remedy for the judiciary to use.

The remedy is to disallow discrimination based on 1st amendment protected speech and association.

That transgressions have gone unpunished and uncorrected in the past is no reason to ignore them in the present.

The majority opinion doesn’t say those “transgressions” need to be presently ignored. Rather, the majority opinion says the Constitution doesn’t afford a remedy and the political branches, Congress, State legislatures, is the proper venue for relief.

The court has chosen to ignore the issue. Congress and the state legislatures are the perpetrators of these transgressions. There is no relief in sight.

No, show me where the founders endorsed partisan gerrymandering specifically. Because they didn't. Defend your words or retract them.

It is in the damn opinion. Read it. I’m not retracting a damn thing because you have an aversion to reading.

Check your reading comprehension. There are many different strategies for gerrymandering and some of them don't involve partisan gerrymandering at all.

Couldn’t care less since the issue is partisan gerrymandering. Hence, take your red herring other kinds of gerrymandering elsewhere.

When the founders generation thought about gerrymandering there is no reason for them to have been thinking about partisan gerrymandering in particular.

They engaged in the practice you moron! To engage in the practice of it meant they had to spend some amount of time thinking about it!

You seem to be insisting that all the founders agreed that partisan gerrymandering was a great thing to include in a democratic republic when we all know that just isn't the case.

I didn’t say a damn thing about “all the founders” and I made no claim any of them thought “it” was a “great thing.” Take your stupid Strawman argument elsewhere.

It is worth noting that they may have perceived the problem but chose to focus on more significant injustices.

May have...could have...they may not have...they could not have...it’s the absence of evidence supporting your coulda and maybe argument that, in part, supports the conclusion the EPC wasn’t perceived to or understood to address the problem, which is related to interpreting the meaning of the EPC. If you think the EPC was understood to address partisan gerrymandering by those who drafted, debated, and ratified the EPC and the 14th Amendment, then you’ll need to have evidence in support. I’ve never read any for such a view.

You ignore the fact that the founders fought the war of independence based largely on their own "sense of justice."

No, they didn’t. They were alleging a violation of rights that existed in English law!

Jefferson and others invoked natural law, specifically Lockean notions of natural law, to justify their secession from the crown. But the list of grievances, as enumerated in the DOI, have a basis in English law.

Second, telling me the founders invoked the same stupid standard is hardly persuasive. Am I supposed to give a damn the founders relied upon the same intuition you invoked? They also believed in the practice of owning people as property but you don’t see me rushing off to hastily accept and agree with that belief just because the “founders” did it.

Besides, that’s a different context than judges interpreting what the law says! The justifications for the war of independence occurred in a non-judicial setting, indeed a setting in which “intuitive justice” is better suited than it is for the judiciary interpreting the laws.

And to be clear, I’m not asserting “intuition”
doesn’t or can’t exist, I’m rejecting your suggestion “intuitive justice” is a proper basis for judges to rely upon to interpret the law.

The same founders wrote the constitution from scratch based on that same sense of justice, coupled with English law and common law, and inspiration from other renaissance/englightenment thinkers.

A non-judicial setting where “intuitive justice” is better suited than it is for the judiciary interpreting the laws.

You were going on and on about majoritarian rule. You were insisting that given two groups with the same number of people they ought to have the same number of representatives. And two groups with vastly different numbers of people ought not to have the same number of representatives. The group with the larger number of people ought to have a larger number of representatives. That's majority rule. But what is the idea of majority rule based on, eh? Why do we consider it a fair arrangement for the majority to have more influence and the minority to have less? Let me whisper the answer your ear... sense of justice...

First, I didn’t insist a “damn” thing. Rather, I was explaining the underlying rationale of those opinions I cited. I never said I agreed!

Second, the “intuitive justice” that induced the existence majoritarian rule was made by the framers, founding generation, and ratifiers, in a political context, not within the context of the judiciary determining what the law says, in which intuitive justice is better suited in the former and not the latter.

Racial gerrymandering doesn't effectively preclude the casting of a ballot either

Racial gerrymandering is distinct from partisan gerrymandering for reasons previously stated.

No, it only nullifies voting influence. But that is more significant. People vote all the time in 3rd world dictatorships. But only the votes that are counted count.

Who would find that stupid point persuasive? The ballots are counted, even in gerrymandered districts!

My hypothetical of literally disenfranchising those who engage in partisan political speech and association has the same motive and the same outcome as partisan gerrymandering.

Nonsense. Gerrymandering doesn’t keep people from voting or from having their ballot counted, whereas your example wiped out specific ballots from being counted.

If you need me to draw the parallel a little closer for you I'll quote Allen v. State Board of Elections. Mississippi and other states were clearly engaging in unacceptable racist mischief

Racial discrimination is different than partisan gerrymandering for reasons stated previously.



Sent from my iPhone using Tapatalk

 

[Angra Mainyu]

No, the bad reply is you are addressing a point of view I’ve never contested.

You did, actually, when you said

the intuitive sense of justice

What the hell is the above? Is that a tickle in the genitals? I’ve heard of this before, Plato’s idea of universal forms, John Locke, CA Lewis and others had an idea that there exists in most of us an internal moral compass of what is right and wrong, your “intuitive” bull crap, essentially a damn Jiminy Cricket guiding us as to what is fair, just, equitable, right, and wrong. It’s a damn bad argument.

Your “intuition” of what is just may not be the same as mine or a vast majority of people, which is to say that a stupendously stupid approach for the judiciary to follow. What the law says shouldn’t be up to what each subjective Jiminy Cricket whispers in the ears of each individual judge or justice. It’s also a fantastically moronic approach to interpret the Constitution. Interpretation of what the law says shouldn’t be based upon “intuition,” as no one person’s intuition is inherently better or superior than anyone else’s, and given that fact intuition shouldn’t be the basis of what the law says.

I do agree with the point that the US Constitution does not ban partisan gerrymandering, but your reply was far beyond what was needed - a case of throwing the baby out with the bathwater by attacking the intuitive sense of justice, and generally human intuition.

In criminal law, the legal requirements of burden of proof, presumption of innocence, and proof beyond a reasonable doubt, exist to limit the intuition of the jury.

In part, yes, though the requirement of evidence beyond appeals to the intuitions of the jurors about what sort of evidence makes the accusation so probable that it is beyond a reasonable doubt. So, it's a limitation to some but not all of the intuitions of the jurors. I was not suggesting of course that there were no limits in the law, but rather, that in some cases, there is precisely an appeal to the intuitive sense of justice - and in many more, to the epistemic intuitions of the judges of fact or law, and this part inevitably.

Yes, some degree of “intuition” may necessarily exist, but I never said otherwise. Instead, I was only addressing Zorq’s “intuitive justice” which referenced to no restraints other than, as stated, the mere intuition of the individual.

You were replying to his post, but in doing so, you went too far. Remember that you replied "What the hell is the above? Is that a tickle in the genitals? I’ve heard of this before, Plato’s idea of universal forms,...", etc., to "the intuitive sense of justice". That reply goes far beyond what is warranted. There is an intuitive sense of justice. It has nothing to do with Platonic forms, or with tickles in the genitals, and in fact it has a role in the application of the law, even if with limits of course.

Of course, those restraints should exist in those two examples you gave precisely and exactly because intuition itself is not a proper basis for the judiciary to determine what the law says.

You mean intuition alone? Of course not. They need information about the law for that! But intuition - mostly epistemic, and sometimes moral - plays a role too, unlike genital tickling or Platonic forms, etc.

 

[zorq]

No, show me where the founders endorsed partisan gerrymandering specifically. Because they didn't. Defend your words or retract them.

It is in the damn opinion. Read it. I’m not retracting a damn thing because you have an aversion to reading.

I read it, so why don't you pretend I'm stupid. Quote for me where the founders endorsed partisan gerrymandering specifically.

Check your reading comprehension. There are many different strategies for gerrymandering and some of them don't involve partisan gerrymandering at all.

Couldn’t care less since the issue is partisan gerrymandering. Hence, take your red herring other kinds of gerrymandering elsewhere.

Your claim that partisan gerrymandering was considered and approved of by the founding generation requires that the founding generation considered and approved of partisan gerrymandering in particular. I'm claiming that the gerrymandering in use in the founder's generation was primarily of a different sort than partisan gerrymandering people are familiar with today and the sort that we are considering in this thread. Therefore the existence and prevalence of these other sorts of gerrymandering indicate that whatever approval or ... tolerance... the founders had for gerrymandering it does not necessarily apply to partisan gerrymandering in particular.

When the founders generation thought about gerrymandering there is no reason for them to have been thinking about partisan gerrymandering in particular.

They engaged in the practice you moron! To engage in the practice of it meant they had to spend some amount of time thinking about it!

That is under debate. They engaged in gerrymandering.

You seem to be insisting that all the founders agreed that partisan gerrymandering was a great thing to include in a democratic republic when we all know that just isn't the case.

I didn’t say a damn thing about “all the founders” and I made no claim any of them thought “it” was a “great thing.” Take your stupid Strawman argument elsewhere.

It is worth noting that they may have perceived the problem but chose to focus on more significant injustices.

May have...could have...they may not have...they could not have...it’s the absence of evidence supporting your coulda and maybe argument that, in part, supports the conclusion the EPC wasn’t perceived to or understood to address the problem, which is related to interpreting the meaning of the EPC. If you think the EPC was understood to address partisan gerrymandering by those who drafted, debated, and ratified the EPC and the 14th Amendment, then you’ll need to have evidence in support. I’ve never read any for such a view.

The woulda coulda shouldas i'm employing demolish your absolutist claims that the founders and the EPC drafters considered, and dismissed partisan gerrymandering. It's your postive claim that these lawmakers endorsed what was happening with partisan gerrymandering that I'm addressing. Maybe you have some actual positive evidence suggesting that the founders positively endorsed the use of partisan gerrymandering or that the EPC is NOT applicable to partisan gerrymandering?

Law makers rarely understand the full impact their laws may have anyway. Their ignorance does not negate the impact.

You ignore the fact that the founders fought the war of independence based largely on their own "sense of justice."

No, they didn’t. They were alleging a violation of rights that existed in English law!

Jefferson and others invoked natural law, specifically Lockean notions of natural law, to justify their secession from the crown. But the list of grievances, as enumerated in the DOI, have a basis in English law.

Second, telling me the founders invoked the same stupid standard is hardly persuasive. Am I supposed to give a damn the founders relied upon the same intuition you invoked? They also believed in the practice of owning people as property but you don’t see me rushing off to hastily accept and agree with that belief just because the “founders” did it.

Besides, that’s a different context than judges interpreting what the law says! The justifications for the war of independence occurred in a non-judicial setting, indeed a setting in which “intuitive justice” is better suited than it is for the judiciary interpreting the laws.

And to be clear, I’m not asserting “intuition”
doesn’t or can’t exist, I’m rejecting your suggestion “intuitive justice” is a proper basis for judges to rely upon to interpret the law.

Many justices would disagree with you. If we admit that the constitution was written with intuitive justice in mind, that invites intuitive justice into the interpretation of the constitution. Regardless, I did not claim that justices should decide this case or any case based on an intuitive sense of justice, I claimed that humans have an intuitive sense of justice and both partisan gerrymandering and 1 person 1 vote gerrymandering violate this same sense of justice. My argument against racial gerrymandering parallels the the successful USSC cases decided against racial gerrymandering. The only significant parallel my argument has with 1 person 1 vote gerrymandering is this same violation of intuitive justice that groups of different sizes, all other things being equal, ought have an amount of influence proportionate to their size.

The same founders wrote the constitution from scratch based on that same sense of justice, coupled with English law and common law, and inspiration from other renaissance/englightenment thinkers.

A non-judicial setting where “intuitive justice” is better suited than it is for the judiciary interpreting the laws.

You were going on and on about majoritarian rule. You were insisting that given two groups with the same number of people they ought to have the same number of representatives. And two groups with vastly different numbers of people ought not to have the same number of representatives. The group with the larger number of people ought to have a larger number of representatives. That's majority rule. But what is the idea of majority rule based on, eh? Why do we consider it a fair arrangement for the majority to have more influence and the minority to have less? Let me whisper the answer your ear... sense of justice...

First, I didn’t insist a “damn” thing. Rather, I was explaining the underlying rationale of those opinions I cited. I never said I agreed!

Second, the “intuitive justice” that induced the existence majoritarian rule was made by the framers, founding generation, and ratifiers, in a political context, not within the context of the judiciary determining what the law says, in which intuitive justice is better suited in the former and not the latter.

Racial gerrymandering doesn't effectively preclude the casting of a ballot either

Racial gerrymandering is distinct from partisan gerrymandering for reasons previously stated.

No, it only nullifies voting influence. But that is more significant. People vote all the time in 3rd world dictatorships. But only the votes that are counted count.

Who would find that stupid point persuasive? The ballots are counted, even in gerrymandered districts!

I suspect that the justices who wrote the decision in Allen v. State board of Elections might find it persuasive seeing as how they directly equated the deliberate dilution of votes with the "nullification" of those votes. They drew a direct equivalence between introducing that nullification and preventing black voters from voting. The ability of your vote to impact an election is clearly the more significant part of the election process than merely casting the vote and having it counted.

My hypothetical of literally disenfranchising those who engage in partisan political speech and association has the same motive and the same outcome as partisan gerrymandering.

Nonsense. Gerrymandering doesn’t keep people from voting or from having their ballot counted, whereas your example wiped out specific ballots from being counted.

If it's nonsense why did the USSC use the exact same reasoning in Allen v. State board of Elections?

If you need me to draw the parallel a little closer for you I'll quote Allen v. State Board of Elections. Mississippi and other states were clearly engaging in unacceptable racist mischief

Racial discrimination is different than partisan gerrymandering for reasons stated previously.

(Sigh) This sentence you are responding to references USSC acknowledgement of the direct parallel between racial gerrymandering and direct racial disenfranchisement. My hypothetical of Nevada disenfranchising declared Republicans was intended to draw a direct parallel between partisan gerrymandering and partisan disenfranchisement.

If you suppose that the partisan disenfranchisement I proposed in my hypothetical would be upheld by the USSC, then you're right. There is no standing for the partisan gerrymandering in Rucho to by decided by the courts.

I suspect, however, that partisan disenfranchisement is unconstituitional based on our 1st amendment protections. And I also surmise that based on this same reasoning that partisan gerrymandering is also unconstitutional based on the 1st amendment.

We all admit that there are differences between racial gerrymandering and partisan gerrymandering. It's your refusal to recognize the similarities that disturbs me.

Government discrimination based on race is prohibited. Government discrimination based on speech and association is prohibited. These are prohibited based on different parts of the constitution but their prohibition is not in question. USSC correctly identified racial gerrymandering as a form of racial discrimination. USSC refuses to identify partisan gerrymandering as a form of discrimination based on speech and association. There is a problem here.

 

[zorq]

Nor do our racial gerrymandering cases provide an appropriate standard for assessing partisan gerrymander- ing. “[N]othing in our case law compels the conclusion that racial and political gerrymanders are subject to pre- cisely the same constitutional scrutiny. In fact, our coun- try’s long and persistent history of racial discrimination in voting—as well as our Fourteenth Amendment jurispru- dence, which always has reserved the strictest scrutiny for discrimination on the basis of race—would seem to compel the opposite conclusion.” Shaw I, 509 U. S., at 650 (cita- tion omitted). Unlike partisan gerrymandering claims, a racial gerrymandering claim does not ask for a fair share of political power and influence, with all the justiciability conundrums that entails. It asks instead for the elimina- tion of a racial classification. A partisan gerrymandering claim cannot ask for the elimination of partisanship.” [/I]

That makes sense. Partisan gerrymandering is different.

I'm going to back up a little bit because this is where I perceive Roberts's decision to go off the rails.

Roberts quotes Shaw here but I take issue with this quote too. Violations of freedom of speech and association have always reserved scrutiny just as strict as for racial discrimination. And even if they haven't, that would be a failure of the court and not the constitution. The constitution is quite clear in its defense of freedom of speech and association.

Again, partisan gerrymandering claims don't ask for a fair share of political power and influence. Just like with Racial gerrymandering cases, partisan gerrymandering claims ask for the elimination of partisan classification.

The blatantly unfair distribution of power is proof that the influence that some voters have tried to exert have been suppressed. It is the symptom and objective of the discrimination, but the disease is the discrimination.

Partisan gerrymandering doesn't ask for the the elimination of partisanship, it asks for the elimination of government discrimination on the basis of declared political association.

Roberts confuses the symptoms for the disease and because the constitution binds his hands on treating the symptoms (distribuition of political power), he conveniently ignores the disease that he is permitted to treat (discrimination on the basis of 1st amendment protected speech and association).

 

[Shadowy Man]

The state boundaries themselves are a form of gerrymandering that always impact federal elections. It would seem that the "one person, one vote" standard only applies *within* states.

 

[James Madison]

You did, actually, when you said

What the hell is the above? Is that a tickle in the genitals? I’ve heard of this before, Plato’s idea of universal forms, John Locke, CA Lewis and others had an idea that there exists in most of us an internal moral compass of what is right and wrong, your “intuitive” bull crap, essentially a damn Jiminy Cricket guiding us as to what is fair, just, equitable, right, and wrong. It’s a damn bad argument.

Your “intuition” of what is just may not be the same as mine or a vast majority of people, which is to say that a stupendously stupid approach for the judiciary to follow. What the law says shouldn’t be up to what each subjective Jiminy Cricket whispers in the ears of each individual judge or justice. It’s also a fantastically moronic approach to interpret the Constitution. Interpretation of what the law says shouldn’t be based upon “intuition,” as no one person’s intuition is inherently better or superior than anyone else’s, and given that fact intuition shouldn’t be the basis of what the law says.

I do agree with the point that the US Constitution does not ban partisan gerrymandering, but your reply was far beyond what was needed - a case of throwing the baby out with the bathwater by attacking the intuitive sense of justice, and generally human intuition.

In criminal law, the legal requirements of burden of proof, presumption of innocence, and proof beyond a reasonable doubt, exist to limit the intuition of the jury.

In part, yes, though the requirement of evidence beyond appeals to the intuitions of the jurors about what sort of evidence makes the accusation so probable that it is beyond a reasonable doubt. So, it's a limitation to some but not all of the intuitions of the jurors. I was not suggesting of course that there were no limits in the law, but rather, that in some cases, there is precisely an appeal to the intuitive sense of justice - and in many more, to the epistemic intuitions of the judges of fact or law, and this part inevitably.

Yes, some degree of “intuition” may necessarily exist, but I never said otherwise. Instead, I was only addressing Zorq’s “intuitive justice” which referenced to no restraints other than, as stated, the mere intuition of the individual.

You were replying to his post, but in doing so, you went too far. Remember that you replied "What the hell is the above? Is that a tickle in the genitals? I’ve heard of this before, Plato’s idea of universal forms,...", etc., to "the intuitive sense of justice". That reply goes far beyond what is warranted. There is an intuitive sense of justice. It has nothing to do with Platonic forms, or with tickles in the genitals, and in fact it has a role in the application of the law, even if with limits of course.

Of course, those restraints should exist in those two examples you gave precisely and exactly because intuition itself is not a proper basis for the judiciary to determine what the law says.

You mean intuition alone? Of course not. They need information about the law for that! But intuition - mostly epistemic, and sometimes moral - plays a role too, unlike genital tickling or Platonic forms, etc.

You did

No I did not. You misconstrued what I said, and incorrectly perceived my comments to be making the point that intuition was not a factor in Constitutional interpretation. Intuition, at times, does play a role in Constitutional interpretation and my disagreement was not with that notion but with the extent of its application, specifically I disagreed with Zorq's suggestion "intuitive justice" should be a basis for Constitutional interpretation. I never disagreed with the notion intuition was a factor. Since I never asserted institution was not or could not be a factor, this renders the rest of your post moot, as the remainder of your post is addressing the notion intuition does not or cannot be a factor. Since I never said or implied otherwise, there is nothing for me to address in your post.

 

[James Madison]

Nor do our racial gerrymandering cases provide an appropriate standard for assessing partisan gerrymander- ing. “[N]othing in our case law compels the conclusion that racial and political gerrymanders are subject to pre- cisely the same constitutional scrutiny. In fact, our coun- try’s long and persistent history of racial discrimination in voting—as well as our Fourteenth Amendment jurispru- dence, which always has reserved the strictest scrutiny for discrimination on the basis of race—would seem to compel the opposite conclusion.” Shaw I, 509 U. S., at 650 (cita- tion omitted). Unlike partisan gerrymandering claims, a racial gerrymandering claim does not ask for a fair share of political power and influence, with all the justiciability conundrums that entails. It asks instead for the elimina- tion of a racial classification. A partisan gerrymandering claim cannot ask for the elimination of partisanship.” [/I]

That makes sense. Partisan gerrymandering is different.

I'm going to back up a little bit because this is where I perceive Roberts's decision to go off the rails.

Roberts quotes Shaw here but I take issue with this quote too. Violations of freedom of speech and association have always reserved scrutiny just as strict as for racial discrimination. And even if they haven't, that would be a failure of the court and not the constitution. The constitution is quite clear in its defense of freedom of speech and association.

Again, partisan gerrymandering claims don't ask for a fair share of political power and influence. Just like with Racial gerrymandering cases, partisan gerrymandering claims ask for the elimination of partisan classification.

The blatantly unfair distribution of power is proof that the influence that some voters have tried to exert have been suppressed. It is the symptom and objective of the discrimination, but the disease is the discrimination.

Partisan gerrymandering doesn't ask for the the elimination of partisanship, it asks for the elimination of government discrimination on the basis of declared political association.

Roberts confuses the symptoms for the disease and because the constitution binds his hands on treating the symptoms (distribuition of political power), he conveniently ignores the disease that he is permitted to treat (discrimination on the basis of 1st amendment protected speech and association).

I'm going to back up a little bit ...Roberts quotes Shaw here but I take issue with this quote too. Violations of freedom of speech and association have always reserved scrutiny just as strict as for racial discrimination. And even if they haven't, that would be a failure of the court and not the constitution. The constitution is quite clear in its defense of freedom of speech and association.

You need to "back up" more because strict scrutiny is not applicable unless and until a violation of a fundamental right or a right in the Bill of Rights in infringed upon. Strict scrutiny was not applied in this case because the majority did not find speech or associational rights to be violated by partisan gerrymandering. As Roberts said:

"To begin, there are no restrictions on speech, association, or any other First Amendment activities in the districting plans at issue. The plaintiffs are free to engage in
those activities no matter what the effect of a plan may be on their district."​

Again, partisan gerrymandering claims don't ask for a fair share of political power and influence.

The claims made by the appellees in Rucho v. Common Cause are based upon, in part, fairness. Well, it may be the case appellee's claims have fairness as their common denominator and ultimately could be reduced to questions of fairness. I submit, a basis of a claim made in the case does in fact ask for a fairer "share" of partisan representation by asking the Court to declare the lines drawn do not constitute as a fair share of partisan representation. Indeed, the appellees in Rucho v. Common Cause invited the Court to make such a determination. Roberts, in repudiating the invitation, said the following:

Unable to claim that the Constitution requires proportional representation outright, plaintiffs inevitably ask the courts to make their own political judgment about how much representation particular political parties deserve—
based on the votes of their supporters—and to rearrange the challenged districts to achieve that end. But federal courts are not equipped to apportion political power as a matter of fairness, nor is there any basis for concluding that they were authorized to do so. As Justice Scalia put it for the plurality in Vieth:
“‘Fairness’ does not seem to us a judicially manageable standard. . . . Some criterion more solid and more demonstrably met than that seems to us necessary to enable the state legislatures to discern the limits of their districting discretion, to meaningfully constrain the discretion of the courts, and to win public acceptance for the courts’ intrusion into a process that is the very foundation of democratic decisionmaking.” 541 U. S., at 291.

The initial difficulty in settling on a “clear, manageable and politically neutral” test for fairness is that it is not even clear what fairness looks like in this context. There is a large measure of “unfairness” in any winner-take-all system. Fairness may mean a greater number of competitive districts.​

Just like with Racial gerrymandering cases, partisan gerrymandering claims ask for the elimination of partisan classification.

That just begs the question of why ask "for the elimination of partisan classification," and the answer involves fairness. It is futile to try and escape the fairness component that is inherent in the claims made by those denouncing "partisan classification."

The blatantly unfair distribution of power

LOL. But it is not about fairness.

1. partisan gerrymandering claims don't ask for a fair share of political power and influence
2. The blatantly unfair distribution of power
​

Roberts confuses the symptoms for the disease and because the constitution binds his hands on treating the symptoms (distribuition of political power), he conveniently ignores the disease that he is permitted to treat (discrimination on the basis of 1st amendment protected speech and association

To the contrary, Roberts explains why the discrimination does not implicate the 1st Amendment.

The plaintiffs’ argument is that partisanship in districting should be regarded as simple discrimination against supporters of the opposing party on the basis of political viewpoint. Under that theory, any level of partisanship in
districting would constitute an infringement of their First Amendment rights. But as the Court has explained, “t would be idle . . . to contend that any political consideration taken into account in fashioning a reapportionment
plan is sufficient to invalidate it.” Gaffney, 412 U. S., at 752. The First Amendment test simply describes the act of districting for partisan advantage. It provides no standard for determining when partisan activity goes too
far.​

 

[zorq]

The blatantly unfair distribution of power

LOL. But it is not about fairness.

1. partisan gerrymandering claims don't ask for a fair share of political power and influence
2. The blatantly unfair distribution of power
​

I thought you would have more integrity than to quote me out of context.

 

[Angra Mainyu]

You did, actually, when you said


I do agree with the point that the US Constitution does not ban partisan gerrymandering, but your reply was far beyond what was needed - a case of throwing the baby out with the bathwater by attacking the intuitive sense of justice, and generally human intuition.


In part, yes, though the requirement of evidence beyond appeals to the intuitions of the jurors about what sort of evidence makes the accusation so probable that it is beyond a reasonable doubt. So, it's a limitation to some but not all of the intuitions of the jurors. I was not suggesting of course that there were no limits in the law, but rather, that in some cases, there is precisely an appeal to the intuitive sense of justice - and in many more, to the epistemic intuitions of the judges of fact or law, and this part inevitably.

Yes, some degree of “intuition” may necessarily exist, but I never said otherwise. Instead, I was only addressing Zorq’s “intuitive justice” which referenced to no restraints other than, as stated, the mere intuition of the individual.

You were replying to his post, but in doing so, you went too far. Remember that you replied "What the hell is the above? Is that a tickle in the genitals? I’ve heard of this before, Plato’s idea of universal forms,...", etc., to "the intuitive sense of justice". That reply goes far beyond what is warranted. There is an intuitive sense of justice. It has nothing to do with Platonic forms, or with tickles in the genitals, and in fact it has a role in the application of the law, even if with limits of course.

Of course, those restraints should exist in those two examples you gave precisely and exactly because intuition itself is not a proper basis for the judiciary to determine what the law says.

You mean intuition alone? Of course not. They need information about the law for that! But intuition - mostly epistemic, and sometimes moral - plays a role too, unlike genital tickling or Platonic forms, etc.

You did

No I did not. You misconstrued what I said, and incorrectly perceived my comments to be making the point that intuition was not a factor in Constitutional interpretation. Intuition, at times, does play a role in Constitutional interpretation and my disagreement was not with that notion but with the extent of its application, specifically I disagreed with Zorq's suggestion "intuitive justice" should be a basis for Constitutional interpretation. I never disagreed with the notion intuition was a factor. Since I never asserted institution was not or could not be a factor, this renders the rest of your post moot, as the remainder of your post is addressing the notion intuition does not or cannot be a factor. Since I never said or implied otherwise, there is nothing for me to address in your post.

No, you actually attacked "the intuitive sense of justice". If you did not mean to do that, you seriously misspoke. Regardless, the exchange is on record, so I'll leave it at that.

 

[James Madison]

SCOTUS in 5 to 4 decision rule "Fuck democracy"

You did, actually, when you said


I do agree with the point that the US Constitution does not ban partisan gerrymandering, but your reply was far beyond what was needed - a case of throwing the baby out with the bathwater by attacking the intuitive sense of justice, and generally human intuition.


In part, yes, though the requirement of evidence beyond appeals to the intuitions of the jurors about what sort of evidence makes the accusation so probable that it is beyond a reasonable doubt. So, it's a limitation to some but not all of the intuitions of the jurors. I was not suggesting of course that there were no limits in the law, but rather, that in some cases, there is precisely an appeal to the intuitive sense of justice - and in many more, to the epistemic intuitions of the judges of fact or law, and this part inevitably.


You were replying to his post, but in doing so, you went too far. Remember that you replied "What the hell is the above? Is that a tickle in the genitals? I’ve heard of this before, Plato’s idea of universal forms,...", etc., to "the intuitive sense of justice". That reply goes far beyond what is warranted. There is an intuitive sense of justice. It has nothing to do with Platonic forms, or with tickles in the genitals, and in fact it has a role in the application of the law, even if with limits of course.

Of course, those restraints should exist in those two examples you gave precisely and exactly because intuition itself is not a proper basis for the judiciary to determine what the law says.

You mean intuition alone? Of course not. They need information about the law for that! But intuition - mostly epistemic, and sometimes moral - plays a role too, unlike genital tickling or Platonic forms, etc.

You did

No I did not. You misconstrued what I said, and incorrectly perceived my comments to be making the point that intuition was not a factor in Constitutional interpretation. Intuition, at times, does play a role in Constitutional interpretation and my disagreement was not with that notion but with the extent of its application, specifically I disagreed with Zorq's suggestion "intuitive justice" should be a basis for Constitutional interpretation. I never disagreed with the notion intuition was a factor. Since I never asserted institution was not or could not be a factor, this renders the rest of your post moot, as the remainder of your post is addressing the notion intuition does not or cannot be a factor. Since I never said or implied otherwise, there is nothing for me to address in your post.

No, you actually attacked "the intuitive sense of justice". If you did not mean to do that, you seriously misspoke. Regardless, the exchange is on record, so I'll leave it at that.

Yes, it is on record that you made the stupid Strawman argument that I “attacked the intuitive sense of justice.” You are capable of making this moronic statement by ignoring all the other statements I made which clearly shows I “attacked” this notion of “intuitive justice” as a basis of Constitutional interpretation.



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[James Madison]

The blatantly unfair distribution of power

LOL. But it is not about fairness.

1. partisan gerrymandering claims don't ask for a fair share of political power and influence
2. The blatantly unfair distribution of power
​

I thought you would have more integrity than to quote me out of context.

I had enough integrity to refute your notion fairness was not a consideration in the lawsuit. I had enough integrity to rebut your assertion that fairness isn’t an underlying issue generally.

Now, I do not perceive that I quoted you out of context but it’s possible. So, tell me how I quoted you out of context because, based on what you said, I’m not seeing it.


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[Angra Mainyu]

You did, actually, when you said


I do agree with the point that the US Constitution does not ban partisan gerrymandering, but your reply was far beyond what was needed - a case of throwing the baby out with the bathwater by attacking the intuitive sense of justice, and generally human intuition.


In part, yes, though the requirement of evidence beyond appeals to the intuitions of the jurors about what sort of evidence makes the accusation so probable that it is beyond a reasonable doubt. So, it's a limitation to some but not all of the intuitions of the jurors. I was not suggesting of course that there were no limits in the law, but rather, that in some cases, there is precisely an appeal to the intuitive sense of justice - and in many more, to the epistemic intuitions of the judges of fact or law, and this part inevitably.


You were replying to his post, but in doing so, you went too far. Remember that you replied "What the hell is the above? Is that a tickle in the genitals? I’ve heard of this before, Plato’s idea of universal forms,...", etc., to "the intuitive sense of justice". That reply goes far beyond what is warranted. There is an intuitive sense of justice. It has nothing to do with Platonic forms, or with tickles in the genitals, and in fact it has a role in the application of the law, even if with limits of course.


You mean intuition alone? Of course not. They need information about the law for that! But intuition - mostly epistemic, and sometimes moral - plays a role too, unlike genital tickling or Platonic forms, etc.

You did

No I did not. You misconstrued what I said, and incorrectly perceived my comments to be making the point that intuition was not a factor in Constitutional interpretation. Intuition, at times, does play a role in Constitutional interpretation and my disagreement was not with that notion but with the extent of its application, specifically I disagreed with Zorq's suggestion "intuitive justice" should be a basis for Constitutional interpretation. I never disagreed with the notion intuition was a factor. Since I never asserted institution was not or could not be a factor, this renders the rest of your post moot, as the remainder of your post is addressing the notion intuition does not or cannot be a factor. Since I never said or implied otherwise, there is nothing for me to address in your post.

No, you actually attacked "the intuitive sense of justice". If you did not mean to do that, you seriously misspoke. Regardless, the exchange is on record, so I'll leave it at that.

Yes, it is on record that you made the stupid Strawman argument that I “attacked the intuitive sense of justice.” You are capable of making this moronic statement by ignoring all the other statements I made which clearly shows I “attacked” this notion of “intuitive justice” as a basis of Constitutional interpretation.



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What you attacked is the notion of an intuitive sense of justice, linked it to Platonic forms, etc. I have already explained this in detail, in a previous reply to your posts. If you did not mean to do that, you seriously misspoke, so the error is on you. It's sad because you pretty much got the main facts on your side here and made for the most part good arguments, but you went too far in attacking the intuitive sense of justice, and when I point that out, you did not accept the correction or at least kept quiet, but reacted in an uncivil manner instead.

 

[James Madison]

SCOTUS in 5 to 4 decision rule "Fuck democracy"

You did

No I did not. You misconstrued what I said, and incorrectly perceived my comments to be making the point that intuition was not a factor in Constitutional interpretation. Intuition, at times, does play a role in Constitutional interpretation and my disagreement was not with that notion but with the extent of its application, specifically I disagreed with Zorq's suggestion "intuitive justice" should be a basis for Constitutional interpretation. I never disagreed with the notion intuition was a factor. Since I never asserted institution was not or could not be a factor, this renders the rest of your post moot, as the remainder of your post is addressing the notion intuition does not or cannot be a factor. Since I never said or implied otherwise, there is nothing for me to address in your post.

No, you actually attacked "the intuitive sense of justice". If you did not mean to do that, you seriously misspoke. Regardless, the exchange is on record, so I'll leave it at that.

Yes, it is on record that you made the stupid Strawman argument that I “attacked the intuitive sense of justice.” You are capable of making this moronic statement by ignoring all the other statements I made which clearly shows I “attacked” this notion of “intuitive justice” as a basis of Constitutional interpretation.



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What you attacked is the notion of an intuitive sense of justice, linked it to Platonic forms, etc. I have already explained this in detail, in a previous reply to your posts. If you did not mean to do that, you seriously misspoke, so the error is on you. It's sad because you pretty much got the main facts on your side here and made for the most part good arguments, but you went too far in attacking the intuitive sense of justice, and when I point that out, you did not accept the correction or at least kept quiet, but reacted in an uncivil manner instead.

... I mentioned two Supreme Court cases, Baker v Carr, and Reynolds v. Sims. Both cases involved constitutional interpretation.

Zorq responded that intuitive justice was a formative principle for the two decisions of Baker v Carr, and Reynolds v Sims, and invoked that same intuitive justice for deciding partisan gerrymandering under the Constitution.

That’s the context of my reply and remarks to Zorq’s invocation of intuitive justice.

...


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[zorq]

I'm going to back up a little bit ...Roberts quotes Shaw here but I take issue with this quote too. Violations of freedom of speech and association have always reserved scrutiny just as strict as for racial discrimination. And even if they haven't, that would be a failure of the court and not the constitution. The constitution is quite clear in its defense of freedom of speech and association.

You need to "back up" more because strict scrutiny is not applicable unless and until a violation of a fundamental right or a right in the Bill of Rights in infringed upon. Strict scrutiny was not applied in this case because the majority did not find speech or associational rights to be violated by partisan gerrymandering. As Roberts said:

"To begin, there are no restrictions on speech, association, or any other First Amendment activities in the districting plans at issue. The plaintiffs are free to engage in
those activities no matter what the effect of a plan may be on their district."​

And he is wrong here as is obvious when we take an instant to compare political gerrymanders with racial gerrymanders. If there is no discrimination in the act of gerrymandering one then there can be no discrimination in the act of gerrymandering the other. The USSC found in Allen vs. State Board of elections that racial gerrymandering violated the EPC of the 14th because the deliberate dilution of minority votes had the effect of "nullifying" those votes. It is clear that if vote nullification... via dilution... via gerrymandering violates the EPC, then there is direct discrimination involved in gerrymandering that pursues vote nullification. Take note there that in each of the racial gerrymandering cases Roberts accepts, the voters were "allowed" to participate in the voting process, but the government's discrimination preventing, their votes to count was declared a "restriction" that the government had placed on minority voters. The parallel to 1st amendment "restriction" is obvious. Roberts refuses to identify it.

Again, partisan gerrymandering claims don't ask for a fair share of political power and influence.

The claims made by the appellees in Rucho v. Common Cause are based upon, in part, fairness. Well, it may be the case appellee's claims have fairness as their common denominator and ultimately could be reduced to questions of fairness. I submit, a basis of a claim made in the case does in fact ask for a fairer "share" of partisan representation by asking the Court to declare the lines drawn do not constitute as a fair share of partisan representation. Indeed, the appellees in Rucho v. Common Cause invited the Court to make such a determination. Roberts, in repudiating the invitation, said the following:

Unable to claim that the Constitution requires proportional representation outright, plaintiffs inevitably ask the courts to make their own political judgment about how much representation particular political parties deserve—
based on the votes of their supporters—and to rearrange the challenged districts to achieve that end. But federal courts are not equipped to apportion political power as a matter of fairness, nor is there any basis for concluding that they were authorized to do so. As Justice Scalia put it for the plurality in Vieth:
“‘Fairness’ does not seem to us a judicially manageable standard. . . . Some criterion more solid and more demonstrably met than that seems to us necessary to enable the state legislatures to discern the limits of their districting discretion, to meaningfully constrain the discretion of the courts, and to win public acceptance for the courts’ intrusion into a process that is the very foundation of democratic decisionmaking.” 541 U. S., at 291.

The initial difficulty in settling on a “clear, manageable and politically neutral” test for fairness is that it is not even clear what fairness looks like in this context. There is a large measure of “unfairness” in any winner-take-all system. Fairness may mean a greater number of competitive districts.​

I concede that the plaintiffs may have demanded a more fair share of political power to be apportioned. I agree with Roberts that it is outside the jurisdiction of the court to deliberately apportion that political power via districting. But it is not clear to me that the inference Roberts makes in the above quote that the plantiffs were making that demand.

You see, in the racial gerrymandering cases, it was only possible to identify a racial gerrymander was by observing it's irregular shape and deducing that it could only have been chosen based on a deliberate pursuit of nullifying the votes of minorities. And the only way for the court to correct these gerrymanders was to demand states to draw new district lines in ways that ignore the racial demographics of the residents. This inevitably lead to less vote nullification, which just happens to be "fair."

Just like with Racial gerrymandering cases, partisan gerrymandering claims ask for the elimination of partisan classification.

That just begs the question of why ask "for the elimination of partisan classification," and the answer involves fairness. It is futile to try and escape the fairness component that is inherent in the claims made by those denouncing "partisan classification."

I agree that it involves fairness, because, as I said before all cases of discrimination involve fairness, and the US constitution demands equal protection in the EPC. Don't you think that unequal protection is unfair? But as I clarified BEFORE, a case demanding the end to partisan gerrymandering need not demand a "fair" distribution of political power. Which is what I was referring to, because I was responding to Roberts and that is what Roberts was referring to.

The blatantly unfair distribution of power

LOL. But it is not about fairness.

1. partisan gerrymandering claims don't ask for a fair share of political power and influence
2. The blatantly unfair distribution of power
​

The sun appears yellow but sunburns aren't about the color perceived by our eyes.

You juxtapose unconnected statements implying a connection and therefore a contradiction, but even your juxtaposition doesn't withstand the inclusion of complete sentences, you are forced to splice my thoughts into nonsense fragments in an attempt to ridicule me. This is especially frustrating when the very sentence you choose to splice was part of an attempt to help you distinguish the difference between eliminating 1st amendment discrimination and dividing political power "fairly."

Or maybe you are merely too morally blind to notice that political gerrymandering is indeed unfair and you need to be taught a kindergarten lesson in fairness... Well, here it goes, I guess...

When it comes to dividing a pie fairly between two hungry families, it makes sense to apportion an equal amount to each family based on the number of people in each family. When one family consists of three people and the other consists of ten, it would be considered to be unfair to divide the pie 50-50. Likewise it would be considered unfair to give 80% of a pie to a family of six people and 20% to a family of five. Gerrymandered states exhibit a similar unfair distribution of political influence.

BUT AGAIN... my argument does not even touch on THIS unfairness which happens to be derived from our intuitive sense of justice. (BTW, my mentioning of which DOES NOT imply an endorsement for interpreting the constitution through an unlimited lense of "intuitive justice")

Ugh.

Roberts confuses the symptoms for the disease and because the constitution binds his hands on treating the symptoms (distribuition of political power), he conveniently ignores the disease that he is permitted to treat (discrimination on the basis of 1st amendment protected speech and association

To the contrary, Roberts explains why the discrimination does not implicate the 1st Amendment.

The plaintiffs’ argument is that partisanship in districting should be regarded as simple discrimination against supporters of the opposing party on the basis of political viewpoint. Under that theory, any level of partisanship in
districting would constitute an infringement of their First Amendment rights. But as the Court has explained, “t would be idle . . . to contend that any political consideration taken into account in fashioning a reapportionment
plan is sufficient to invalidate it.” Gaffney, 412 U. S., at 752. The First Amendment test simply describes the act of districting for partisan advantage. It provides no standard for determining when partisan activity goes too
far.​

On the contrary, the constitution DOES provide a standard. The 1st amendment sets the standard as making "NO LAW... abridging freedom of speech" the 14th amendment sets the standard as "denying equal protection" So YES! All districting plans that take political affiliation into consideration whether to balance or minimize are in violation because they all discriminate in one way or another.

As a side note, the Gaffney decision is amusing to read in itself in the context of this thread. The reason it endorses allowing political consideration is because it allows for districting that is even more "fair" than an unbiased districting that ignores political affiliation might produce.

The very essence of districting is to produce a different - a more "politically fair" - result than would be reached with elections at large,
...
It may be suggested that those who redistrict and reapportion should work with census, not political, data and achieve population equality without regard for political impact. But this politically mindless approach may produce, whether intended or not, the most grossly gerrymandered results;
...
Even more plainly, judicial interest should be at its lowest ebb when a State purports fairly to allocate political power to the parties in accordance with their voting strength and, within quite tolerable limits, succeeds in doing so.

Almost as if White was influenced by his sense of fairness when he wrote the decision and approved of states pursuing fairness in their districting...but now, according to Roberts , somehow because this dirty tool of political consideration might be used to pursue greater fairness it can't possibly be a violation of a person's rights when it is used in a pursuit of unbalanced political power?

 

[Tom Sawyer]

/mod

 

[James Madison]

Again, partisan gerrymandering claims don't ask for a fair share of political power and influence.

The claims made by the appellees in Rucho v. Common Cause are based upon, in part, fairness. Well, it may be the case appellee's claims have fairness as their common denominator and ultimately could be reduced to questions of fairness. I submit, a basis of a claim made in the case does in fact ask for a fairer "share" of partisan representation by asking the Court to declare the lines drawn do not constitute as a fair share of partisan representation. Indeed, the appellees in Rucho v. Common Cause invited the Court to make such a determination. Roberts, in repudiating the invitation, said the following:

Unable to claim that the Constitution requires proportional representation outright, plaintiffs inevitably ask the courts to make their own political judgment about how much representation particular political parties deserve—
based on the votes of their supporters—and to rearrange the challenged districts to achieve that end. But federal courts are not equipped to apportion political power as a matter of fairness, nor is there any basis for concluding that they were authorized to do so. As Justice Scalia put it for the plurality in Vieth:
“‘Fairness’ does not seem to us a judicially manageable standard. . . . Some criterion more solid and more demonstrably met than that seems to us necessary to enable the state legislatures to discern the limits of their districting discretion, to meaningfully constrain the discretion of the courts, and to win public acceptance for the courts’ intrusion into a process that is the very foundation of democratic decisionmaking.” 541 U. S., at 291.

The initial difficulty in settling on a “clear, manageable and politically neutral” test for fairness is that it is not even clear what fairness looks like in this context. There is a large measure of “unfairness” in any winner-take-all system. Fairness may mean a greater number of competitive districts.​

I concede that the plaintiffs may have demanded a more fair share of political power to be apportioned. I agree with Roberts that it is outside the jurisdiction of the court to deliberately apportion that political power via districting. But it is not clear to me that the inference Roberts makes in the above quote that the plantiffs were making that demand.

Just like with Racial gerrymandering cases, partisan gerrymandering claims ask for the elimination of partisan classification.

That just begs the question of why ask "for the elimination of partisan classification," and the answer involves fairness. It is futile to try and escape the fairness component that is inherent in the claims made by those denouncing "partisan classification."

I agree that it involves fairness, because, as I said before all cases of discrimination involve fairness, and the US constitution demands equal protection in the EPC. Don't you think that unequal protection is unfair? But as I clarified BEFORE, a case demanding the end to partisan gerrymandering need not demand a "fair" distribution of political power. Which is what I was referring to, because I was responding to Roberts and that is what Roberts was referring to.

The blatantly unfair distribution of power

LOL. But it is not about fairness.

1. partisan gerrymandering claims don't ask for a fair share of political power and influence
2. The blatantly unfair distribution of power
​

The sun appears yellow but sunburns aren't about the color perceived by our eyes.

You juxtapose unconnected statements implying a connection and therefore a contradiction, but even your juxtaposition doesn't withstand the inclusion of complete sentences, you are forced to splice my thoughts into nonsense fragments in an attempt to ridicule me. This is especially frustrating when the very sentence you choose to splice was part of an attempt to help you distinguish the difference between eliminating 1st amendment discrimination and dividing political power "fairly."


When it comes to dividing a pie fairly between two hungry families, it makes sense to apportion an equal amount to each family based on the number of people in each family. When one family consists of three people and the other consists of ten, it would be considered to be unfair to divide the pie 50-50. Likewise it would be considered unfair to give 80% of a pie to a family of six people and 20% to a family of five. Gerrymandered states exhibit a similar unfair distribution of political influence.

BUT AGAIN... my argument does not even touch on THIS unfairness which happens to be derived from our intuitive sense of justice. (BTW, my mentioning of which DOES NOT imply an endorsement for interpreting the constitution through an unlimited lense of "intuitive justice")

Ugh.

Roberts confuses the symptoms for the disease and because the constitution binds his hands on treating the symptoms (distribuition of political power), he conveniently ignores the disease that he is permitted to treat (discrimination on the basis of 1st amendment protected speech and association

To the contrary, Roberts explains why the discrimination does not implicate the 1st Amendment.

The plaintiffs’ argument is that partisanship in districting should be regarded as simple discrimination against supporters of the opposing party on the basis of political viewpoint. Under that theory, any level of partisanship in
districting would constitute an infringement of their First Amendment rights. But as the Court has explained, “t would be idle . . . to contend that any political consideration taken into account in fashioning a reapportionment
plan is sufficient to invalidate it.” Gaffney, 412 U. S., at 752. The First Amendment test simply describes the act of districting for partisan advantage. It provides no standard for determining when partisan activity goes too
far.​

On the contrary, the constitution DOES provide a standard. The 1st amendment sets the standard as making "NO LAW... abridging freedom of speech" the 14th amendment sets the standard as "denying equal protection" So YES! All districting plans that take political affiliation into consideration whether to balance or minimize are in violation because they all discriminate in one way or another.

As a side note, the Gaffney decision is amusing to read in itself in the context of this thread. The reason it endorses allowing political consideration is because it allows for districting that is even more "fair" than an unbiased districting that ignores political affiliation might produce.

The very essence of districting is to produce a different - a more "politically fair" - result than would be reached with elections at large,
...
It may be suggested that those who redistrict and reapportion should work with census, not political, data and achieve population equality without regard for political impact. But this politically mindless approach may produce, whether intended or not, the most grossly gerrymandered results;
...
Even more plainly, judicial interest should be at its lowest ebb when a State purports fairly to allocate political power to the parties in accordance with their voting strength and, within quite tolerable limits, succeeds in doing so.

Almost as if White was influenced by his sense of fairness when he wrote the decision and approved of states pursuing fairness in their districting...but now, according to Roberts , somehow because this dirty tool of political consideration might be used to pursue greater fairness it can't possibly be a violation of a person's rights when it is used in a pursuit of unbalanced political power?

And he is wrong here as is obvious when we take an instant to compare political gerrymanders with racial gerrymanders. If there is no discrimination in the act of gerrymandering one then there can be no discrimination in the act of gerrymandering the other. The USSC found in Allen vs. State Board of elections that racial gerrymandering violated the EPC of the 14th because the deliberate dilution of minority votes had the effect of "nullifying" those votes. It is clear that if vote nullification... via dilution... via gerrymandering violates the EPC, then there is direct discrimination involved in gerrymandering that pursues vote nullification. Take note there that in each of the racial gerrymandering cases Roberts accepts, the voters were "allowed" to participate in the voting process, but the government's discrimination preventing, their votes to count was declared a "restriction" that the government had placed on minority voters. The parallel to 1st amendment "restriction" is obvious. Roberts refuses to identify it.

Your argument suffers from the erroneous assumption that if discrimination is prohibited under the EPC of the 14th Amendment in situation X, then discrimination is also prohibited in situation Y. Not all or every form of discrimination is precluded under the EPC. The Court has long held the act of treating people differently is not prohibited by the EPC. Rather, certain kinds of discrimination are prohibited. Roberts makes the point partisan gerrymandering isn’t discrimination prohibited by the EPC. He explains why.

First, under the EPC, laws and government action based on race or having a disparate impact strike at the core of the EPC. The 14th and 15th Amendments have as their impetus, although not the exclusive impetus, racial discrimination in general but also specifically racial discrimination in regards to voting. Racial discrimination by the States, including in regards to the vote, was a scourge the amendments were conceived to address.

The EPC wasn’t conceived to address partisan gerrymandering, which has a long history, preceding the existence of the American Republic. Indeed, the founding fathers and framers were aware of partisan gerrymandering. They produced a Constitution that didn’t abolish the practice or address it. Instead, some of the founders and framers participated in and advocated for the practice of partisan gerrymandering. The generation who gave us the 14th Amendment didn’t perceive partisan gerrymandering to be a problem to be addressed by the EPC. Instead, partisan gerrymandering was a widely known and accepted practice by the time the 14th Amendment was passed. There wasn’t a hint that the EPC was understood by anyone to address partisan gerrymandering or that partisan gerrymandering implicated any part of the 14th Amendment, unlike race.

The cases dealing with State proportional representation are very different than partisan gerrymandering. In a direct democracy, each person directly votes, as opposed to a representative voting on their behalf. and the majority vote talley prevails, consistent with majoritarian rule. A representative government, like the U.S., isn’t a direct democracy but in an attempt to adhere to the notion of majority rule, the greater number of people are entitled to a greater number of representatives, the latter constituting as a greater number of votes reflecting the greater number of people.

So, if it’s 1 rep for 10 people, and NYC has 100 people, then they should have 10 reps. Whereas a town with 10 people should have only 1 rep. This arrangement is in keeping with the principle of majoritarian rule.

What happened in Baker v Carr and Reynolds v Sims is the least populace parts of the States had more votes in the legislature since they had more reps in the legislature then the more populace parts of the States. This imbalance struck at the core of majoritarian representation.

Partisan gerrymandering doesn’t impinge upon majoritarian rule. Partisan gerrymandering isn’t about diluting reps in relation to the people, but instead is about giving candidates from a particular party an advantage by placing more people of a particular party in a district by the redrawing of district lines. The number of reps to the population is still mathematically sound constitutionally, and the fact the people in the district may be represented by more people of a different party doesn’t disturb the majoritarian principle.

That is what Roberts was getting at.

I agree that it involves fairness, because, as I said before all cases of discrimination involve fairness, and the US constitution demands equal protection in the EPC. Don't you think that unequal protection is unfair?

I do not believe the EPC prohibits all discrimination, and partisan gerrymandering is not a kind of discrimination prohibited by the EPC.

Or maybe you are merely too morally blind to notice that political gerrymandering is indeed unfair and you need to be taught a kindergarten lesson in fairness... Well, here it goes, I guess...

Whose moral code am I to apply? Yours? Is your morality positivism? Relativism? Do you subscribe to absolutism? What is the foundation for this morality? Does this morality exist independent of our existence, like a universal moral code, parallel to laws of nature, like gravity?

You juxtapose unconnected statements implying a connection and therefore a contradiction, but even your juxtaposition doesn't withstand the inclusion of complete sentences, you are forced to splice my thoughts into nonsense fragments in an attempt to ridicule me. This is especially frustrating when the very sentence you choose to splice was part of an attempt to help you distinguish the difference between eliminating 1st amendment discrimination and dividing political power "fairly."

Tell me again what the following is to mean, when you said: “The blatantly unfair distribution of power is proof that the influence that some voters have tried to exert have been suppressed. It is the symptom and objective of the discrimination, but the disease is the discrimination. ”

Just a plain text reading of those words shows fairness is an issue. “latantly unfair distribution of power” (partisan gerrymandering), is “proof” the “influence...some voters have tried to exert have been suppressed.” The suppression of the “influence” of “some voters” is the objective of the partisan discrimination, the objective of that “blatantly unfair distribution of power,” i.e. partisan gerrymandering. Yet, according to you, your remark isn’t inconsistent with prior statements a fair distribution of power isn’t being requested. To the contrary, that is exactly what is being asked for, and they want to achieve a fair distribution of power because at the moment it is unfair! They want what they perceive to be a fair distribution of power.

When it comes to dividing a pie fairly between two hungry families, it makes sense to apportion an equal amount to each family based on the number of people in each family. When one family consists of three people and the other consists of ten, it would be considered to be unfair to divide the pie 50-50. Likewise it would be considered unfair to give 80% of a pie to a family of six people and 20% to a family of five. Gerrymandered states exhibit a similar unfair distribution of political influence.

Well, how do you know what you’ve described is unfair?

More importantly, when it comes to constitutional interpretation by the judiciary, individual and subjective notions of fairness is not a proper way to interpret the document. This is Roberts’ point. Absent an intelligible standard in the constitution to direct and guide the Court, ideas of fairness flirt with being arbitrary, well he may go so far as to say it is arbitrary.

BTW, my mentioning of which DOES NOT imply an endorsement for interpreting the constitution through an unlimited lense of "intuitive justice

I said it is not a proper basis for interpreting the constitution.




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