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Is a constitutional amendment the best way to solve gerrymandering?
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Jan 29, 2018 04:54
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Ynglaur posted:Is a constitutional amendment the best way to solve gerrymandering? In the sense that gerrymandering would move from "possibly unconstitutional act" into "mandated by the constitution", then possibly. In any other sense, probably not. There are a lot of mutually exclusive goals that go into drawing districts. https://fivethirtyeight.com/features/hating-gerrymandering-is-easy-fixing-it-is-harder/
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Jan 29, 2018 05:10
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If you're going to solve gerrymandering via constitutional amendment you might as well do something that will actually fix it and have proportional representation.
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Jan 29, 2018 05:12
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evilweasel posted:which, if the framers wrote the 14th amendment, would be a point worth discussing.
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Jan 29, 2018 06:33
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Dead Reckoning posted:Yeah, and I'm pretty sure most of the drafters of the 14th amendment were dead in 1964 when the Supreme Court decided that what they had actually meant by "equal protection of the laws" was that anything other than proportional representation was illegal. Your whole "the founders were dead in 1868 and also slave owners" thing is a complete non-sequitur that does nothing to address the absurdity of extending the equal protection clause to cover the composition of state legislatures. Do you think that American citizens are daily denied due process because the Senate continues to exist? Is there some case you're trying to refer to or are you just being obtuse for the hell of it? The whole basis for judicial review was someone telling the people who wrote the constitution what it meant. I don't really think you've done anything to illustrate the absurdity of extending the equal protection clause to cover the composition of state legislatures other than indicate that it would require coming to some kind of agreed upon reasonable standard that could be regarded as arbitrary if it weren't for those qualifying factors. Kawasaki Nun fucked around with this message at 06:40 on Jan 29, 2018 |
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Jan 29, 2018 06:37
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Kawasaki Nun posted:Is there some case you're trying to refer to or are you just being obtuse for the hell of it? The whole basis for judicial review was someone telling the people who wrote the constitution what it meant. I think the majority argument in Reynolds v. Sims that "equal protection of the laws" meant that the composition of a state elected body being anything but directly proportional to population was illegal is absurd, since the concept of wasted votes is baked into the federal system in pursuit of ensuring that less populous regions cannot be ignored by more populous ones, and it was simply the majority looking for a way to justify the result they desired. Do you think that the continued existence of the Senate means that Americans lack equal protection of the law? I think that the same logic applies to attempting to assert a mathematical formula that "proves" in unconstitutionality. It is possible to distribute representation other than by directly proportional to population and still guarantee citizens equal protection.
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Jan 29, 2018 07:22
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Yea but your opinions are like always bad and stupid
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Jan 29, 2018 07:37
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Dead Reckoning posted:I'm not sure what you mean. I'm not denying that the court, in the realist sense, can decide, "this is what the Constitution means now" and everyone else more or less has to deal with it. However, I think their role is to interpret the constitution and the law as passed by the legislature, not to stretch it into the most just result. No because direct elections of the senate come from the 17th amendment.
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Jan 29, 2018 08:26
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Kawasaki Nun posted:No because direct elections of the senate come from the 17th amendment.
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Jan 29, 2018 08:30
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Dead Reckoning posted:I'm still confused. Senators being directly elected doesn't mean that the Senate has proportional representation. Pretty sure the point is that whether the Senate violates equal protection is completely irrelevant because the 17th comes after the 14th so EVEN IF it violates equal protection, it's still constitutional.
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Jan 29, 2018 08:33
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There is no "if" about it: if you agree with the logic of the majority in Reynolds v. Sims, the existence of the Senate violates the right to equal protection under the law, they just couldn't do anything about it. The only ways you can go from there are, "well, I guess inequality under the law is OK as long as its explicitly double-plus protected in the Constitution" or arguing that the Senate needs to be dissolved and smaller states ground under the heel of the larger as a matter of principle.
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Jan 29, 2018 08:51
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I’ve heard of moving the goal posts, but this is like arguing we cannot use goal posts because a voice from the heavens didn’t tell us precisely how far apart to space them.
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Jan 29, 2018 10:38
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evilweasel posted:guess there's a whole lot of black people who are going to need to turn that extra 2/5ths of their personhood back in. *laughs trumpishly*
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Jan 29, 2018 12:08
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Dead Reckoning posted:There is no "if" about it: if you agree with the logic of the majority in Reynolds v. Sims, the existence of the Senate violates the right to equal protection under the law, they just couldn't do anything about it. The only ways you can go from there are, "well, I guess inequality under the law is OK as long as its explicitly double-plus protected in the Constitution" or arguing that the Senate needs to be dissolved and smaller states ground under the heel of the larger as a matter of principle. I'm not sure why this is causing such a big debate. The equal protection clause obviously does not repeal the existence of the Senate because if it did that would be in the text somewhere, it's not exactly a trivial change. The obvious conclusion then is that the equal protection clause has to be read in context with other constitutional provisions that it did not explicitly repeal, such as the existence of the Senate, the electoral vote process for electing the President, etc. The Constitution doesn't grant wholly equal representation, just equal representation within the limits of the previously extant system.
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Jan 29, 2018 14:12
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Dead Reckoning posted:"well, I guess inequality under the law is OK as long as its explicitly double-plus protected in the Constitution" Not "OK", but certainly "not unconstitutional."
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Jan 29, 2018 14:24
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Dead Reckoning posted:Yeah, and I'm pretty sure most of the drafters of the 14th amendment were dead in 1964 when the Supreme Court decided that what they had actually meant by "equal protection of the laws" was that anything other than proportional representation was illegal. Dead Reckoning posted:I'm not sure what you mean. I'm not denying that the court, in the realist sense, can decide, "this is what the Constitution means now" and everyone else more or less has to deal with it. However, I think their role is to interpret the constitution and the law as passed by the legislature, not to stretch it into the most just result. Hmm thanks for this argument against Brown v Board
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Jan 29, 2018 14:46
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reignonyourparade posted:Pretty sure the point is that whether the Senate violates equal protection is completely irrelevant because the 17th comes after the 14th so EVEN IF it violates equal protection, it's still constitutional. Similarly, as the Court has acknowledged, prohibition and its repeal established that the federal government has no power to regulate drugs absent a new amendment.
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Jan 29, 2018 15:09
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Dead Reckoning posted:There is no "if" about it: if you agree with the logic of the majority in Reynolds v. Sims, the existence of the Senate violates the right to equal protection under the law, they just couldn't do anything about it. The only ways you can go from there are, "well, I guess inequality under the law is OK as long as its explicitly double-plus protected in the Constitution" or arguing that the Senate needs to be dissolved and smaller states ground under the heel of the larger as a matter of principle. The senate doesn't represent the people. They represent the states. That's been the intent from the beginning, and the only thing that's changed is how they're elected. The house represents the people. They are directly representing their constituents in a particular district and nothing beyond that. Senators represent the entire state as a whole. This doesn't touch on equal protection at all and even if it did, states still get equal senatorial representation.
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Jan 29, 2018 15:20
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Dead Reckoning posted:There is no "if" about it: if you agree with the logic of the majority in Reynolds v. Sims, the existence of the Senate violates the right to equal protection under the law, they just couldn't do anything about it. yes, this is obviously and unambiguously true. the issue is that (a) equal protection does not, technically, apply to the federal government due to the wording of the 14th, the Warren Court sort of ignored that and decided that it also applied through the 5th amendment and everyone has quietly agreed to pretend that's true because nobody's super interested in opening up that loophole; and (b) state constitutions are subordinate to the federal constitution in a way that the federal constitution, obviously, is not. the federal constitution is allowed to have contradicting principles. Dead Reckoning posted:The only ways you can go from there are, "well, I guess inequality under the law is OK as long as its explicitly double-plus protected in the Constitution" or arguing that the Senate needs to be dissolved and smaller states ground under the heel of the larger as a matter of principle. the first is the sort of stupid statement i expect out of you. the second is correct once you strip out your nonsense: the senate is anti-democratic and while that has been tolerable in the past the population shifts are accentuating the anti-democratic nature of it to a breaking point. the idea that people deserve hugely enhanced voting power because they live on a different tract of land is stupid and the sort of thing that's only morally justified by the idea that they are somehow special (they're not). politically, it was justified because it was a compromise: it wasn't that the senate was a morally right thing democratically-speaking, it was the solution because the founders weren't even particularly enamored of democracy and the us constitution was a hybrid of a nation-state and a confederation of sovereign states and so it has some anti-democratic features that reflect that second aspect. certain compromises needed to be made to get agreement. those compromises - like the 3/5ths compromise! - are not automatically ~morally correct~ because they flow from the divine wisdom of the founders. Dead Reckoning posted:Yeah, and I'm pretty sure most of the drafters of the 14th amendment were dead in 1964 when the Supreme Court decided that what they had actually meant by "equal protection of the laws" was that anything other than proportional representation was illegal. Your whole "the founders were dead in 1868 and also slave owners" thing is a complete non-sequitur that does nothing to address the absurdity of extending the equal protection clause to cover the composition of state legislatures. Do you think that American citizens are daily denied due process because the Senate continues to exist? this is the sort of thing that moves you from having wrong, but defensible legal opinions to just being an idiot. why it matters that the founders were all dead when the 14th amendment was passed is that they didn't write the 14th amendment the 14th amendment reflected the nation's decision that the founders had badly failed in giving too much leeway to states. so when you whine about founders this and founders that, it doesn't matter because we reversed their decisions. now, whether the authors of the 14th amendment were dead or not is irrelevant to if it means what it says. it means that no state shall deny equal protection of the laws. so that means that you can't give men extra votes, you can't give white people extra votes, and you can't give residents of specific favored tracts of land extra votes. your inability to tell the difference between due process and equal protection is, in this one specific case, forgivable because (as i mentioned above) the warren court decided to read equal protection into the due process clause of the 5th amendment in order to avoid the result (mandated by the strict text of the constitution due to the writers of the 14th amendment loving up) that states could not enforce segregation but Washington DC could. but yes, the existence of the senate violates the moral equal protection rights of citizens of populated states by granting additional voting power to citizens of barren wastelands, in precisely the same way that granting all men over 60 an additional vote (because otherwise its not fair because there are more women than men over 60) would violate the equal protection rights of women
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Jan 29, 2018 16:09
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Mr. Nice! posted:The senate doesn't represent the people. They represent the states. That's been the intent from the beginning, and the only thing that's changed is how they're elected. it absolutely does touch on equal protection: the issue is that the constitution is not required to comply with equal protection. if there was a world-constitution that required all national constitutions to respect equal protection of the laws, the senate would be in violation of that. however, there's not. and even the most hyper-aggressive reading of the 5th and 14th can't impose that requirement on the senate because they're amendments and amendments specifically may not be used to alter equal representation of states in the senate. incidentally, the way to fix the Senate while complying with the Constitution wouldn't be to make it proportional - it would just be to strip all powers from the Senate aside from a handful of ceremonial powers. every state must be equally represented in the Senate, but there's no requirement the Senate have even the meager powers of the House of Lords. once you realize land doesn't deserve representation, there's not really any reason for a bicamerameral legislature in the first place, just make the House effectively the entire Congress and call it a day. evilweasel fucked around with this message at 16:16 on Jan 29, 2018 |
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Jan 29, 2018 16:12
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The states do have equal protection in the senate. They all have two votes. Despite being popularly elected, the senate still represents the states as a whole as a deliberate check on populism. Individuals do not have equal representation in the senate because individuals are not represented in the senate and were never intended to be. edit - just read your last paragraph, and putting the house solely in charge would be insane. As much as the senate can be a laughing stock, they have done a pretty good job being a backstop on the batshit crazy house for the past 8 years.
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Jan 29, 2018 16:17
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Mr. Nice! posted:The states do have equal protection in the senate. They all have two votes. Despite being popularly elected, the senate still represents the states as a whole as a deliberate check on populism. equal protection is being used here as shorthand for what the 14th protects: denying any person equal protection. i know what the senate was intended to be. that intent directly conflicts with democratic norms and equal protection. Mr. Nice! posted:edit - just read your last paragraph, and putting the house solely in charge would be insane. As much as the senate can be a laughing stock, they have done a pretty good job being a backstop on the batshit crazy house for the past 8 years. that is a side effect of gerrymandering, leading the house to be unrepresentative of the national vote, but at the end of the day a democratic system means that the majority should have the ability to put its program into place. anti-democratic structures are still anti-democratic even when they happen to be helpful in the short run. but at this point we're getting less into the legal principles and more into "what is wise policy given the sizable amount of voters who should be institutionalized at this current moment" evilweasel fucked around with this message at 16:22 on Jan 29, 2018 |
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Jan 29, 2018 16:18
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evilweasel posted:equal protection is being used here as shorthand for what the 14th protects: denying any person equal protection. The 14th doesn't touch on senatorial representation because they don't represent people is the point I'm making. The whole argument that the senate doesn't meet the requirements is mooted because the senate has not ever represented people so there is no equal protection or due process they're being denied. I'm just pointing out the absurd strawman here.
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Jan 29, 2018 16:21
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Mr. Nice! posted:The 14th doesn't touch on senatorial representation because they don't represent people is the point I'm making. The whole argument that the senate doesn't meet the requirements is mooted because the senate has not ever represented people so there is no equal protection or due process they're being denied. That logic would support DR's argument - that state senates do not violate equal protection either. That's the issue here: a state may not, under the constitution, create its own Senate where tracts of land are given equal representation. So DR is asking, why is the Senate allowed to exist? As to your point, even if the Senate was originally just about state representation, the 17th effectively abolished that. The Senate, just like the rest of the government, represents the people. The President represents the people, not a college of wise electors who would select the best President. And ultimately, states merely represent the citizens of their states. It's still an equal protection issue, just masked: by giving states equal representation you, by definition, give the citizens of those states unequal representation. That's an equal protection violation no matter what purpose you assign to the Senate because states aren't entitled to equal protection, people are.
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Jan 29, 2018 16:26
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evilweasel posted:That logic would support DR's argument - that state senates do not violate equal protection either. That's the issue here: a state may not, under the constitution, create its own Senate where tracts of land are given equal representation. So DR is asking, why is the Senate allowed to exist? States do not do the same as the federal senate because states are not divisible into individual sovereigns. And even with direct election of senators, they still represent the state as a whole. Of course every elected official in some capacity represents the people. It's that the senate structure was specifically designed to not be democratic and instead give all states equal representation regardless of size. Yes, the people in the states are who are ultimately being represented, but that's not the crux of it. Everyone has two senators from their state. That's the whole point. Yes the senate does not afford a voter in idaho the same voting power as someone in texas, but that's a design feature not a bug.
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Jan 29, 2018 16:36
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evilweasel posted:
How exactly does this proposal deal with Article 1, Section 7? You would still need a constitutional amendment regardless. It would seem that a more practical -- though still ultimately stopgap -- measure would be a new VRA that explcitly required states to elect congressional representatives via proportional representation and single transferrable vote. You would still have the inherent disprortionality of the Senate but it would be ameliorated.
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Jan 29, 2018 16:45
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Mr. Nice! posted:States do not do the same as the federal senate because states are not divisible into individual sovereigns. You keep telling me what the intent was. I know what the intent was. Children know what the intent was. Given that everyone in this discussion knows what the intent was, if you're repeating it then you're missing the point. The point is that yes, the Senate structure was specifically designed not to be democratic, and that violates equal protection (the idea, not the specific constitutional requirement because that requirement doesn't, legally, apply to the Constitution). It doesn't change the analysis to say that the intent was to violate equal protection. It would still violate equal protection if there was no intent to do so (such as if you drew relatively equal districts then never touched them again).
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Jan 29, 2018 16:46
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Hieronymous Alloy posted:How exactly does this proposal deal with Article 1, Section 7? You would still need a constitutional amendment regardless. Oh of course you'd need a constitutional amendment, the problem is that other amendments are either explicitly not allowed (making the Senate proportional to population) or are arguably not allowed (abolishing the Senate entirely - you can argue that either way if the Senate not existing complies with the requirement that all states have equal representation in the Senate). There is absolutely no way to do anything about Senate proportionality issues without an amendment. Fixing the House can absolutely be done by legislation due to Congress's very broad powers to regulate election regulations (doesn't even need to be a VRA) making the results mirror the popular vote more accurately, yes.
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Jan 29, 2018 16:50
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evilweasel posted:You keep telling me what the intent was. I know what the intent was. Children know what the intent was. Given that everyone in this discussion knows what the intent was, if you're repeating it then you're missing the point. People in Texas have the exact same senatorial vote as other people in Texas. People in Texas do not have the same representative vote as other people in Texas because of partisan and unlawful gerrymandering. A voter in rhode island has two senators and equal power in choosing those two senators as everyone else in the state. Similarly someone in Texas has the same right. There is no equal protection issue unless you analyze it on a "voter in state A vs voter in state B" basis, and that's not what the senate is about in the first place. That's why I'm saying there's no equal representation issue as there is in the house due to partisan gerrymandering.
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Jan 29, 2018 16:52
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Mr. Nice! posted:States do not do the same as the federal senate because states are not divisible into individual sovereigns. it hasn't happened for a while, but states can be divided and have been divided before
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Jan 29, 2018 17:01
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Mr. Nice! posted:A voter in rhode island has two senators and equal power in choosing those two senators as everyone else in the state. Similarly someone in Texas has the same right. There is no equal protection issue unless you analyze it on a "voter in state A vs voter in state B" basis, and that's not what the senate is about in the first place. That's why I'm saying there's no equal representation issue as there is in the house due to partisan gerrymandering. yes, but to analyze if citizens of the united states are receiving equal protection under the laws requires you to analyze it cross-state, and again the intent doesn't matter. if the constitution was required to comply with equal protection principles, the senate would absolutely be stricken down and "well the intent was never to comply" wouldn't exactly be a defense.
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Jan 29, 2018 17:08
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exploded mummy posted:it hasn't happened for a while, but states can be divided and have been divided before I'm meaning in the same way that the USA is made up of 50 individual sovereigns. States are not made up of individual fiefdoms in confederation with one another. Also state divisions have only happened outside of the civil war in the case of Kentucky and Maine.
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Jan 29, 2018 17:09
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evilweasel posted:yes, but to analyze if citizens of the united states are receiving equal protection under the laws requires you to analyze it cross-state, and again the intent doesn't matter. if the constitution was required to comply with equal protection principles, the senate would absolutely be stricken down and "well the intent was never to comply" wouldn't exactly be a defense. Yeah, but that would be completely dumb since there's no amendment that's been incorporated to modify the intent of the senate besides mandating popular vote.
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Jan 29, 2018 17:17
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evilweasel posted:Oh of course you'd need a constitutional amendment, the problem is that other amendments are either explicitly not allowed (making the Senate proportional to population) or are arguably not allowed (abolishing the Senate entirely - you can argue that either way if the Senate not existing complies with the requirement that all states have equal representation in the Senate). There is absolutely no way to do anything about Senate proportionality issues without an amendment. Congressional legislation could require that each state elect its individual senators via STV though, correct? Once you have proportional representation in the House and STV in the Senate I'm not sure the problem would remain severe enough to warrant further constitutional muckery. It would be a kludge not a fix but sometimes a kludge is enough. evilweasel posted:that violates equal protection (the idea, not the specific constitutional requirement because that requirement doesn't, legally, apply to the Constitution). This seems like one of the big issues in the current discussion -- I'd argue that "the idea of equal protection" is at best confusing and at worst not (legally) relevant outside the specific requirements of the constitution. "Equal protection" as a phrase means the specific requirements of the Constitution, not some broader principle. I'd suggest using a different phrase for the broader principle -- maybe "equal representation" ?
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Jan 29, 2018 17:25
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Mr. Nice! posted:I'm meaning in the same way that the USA is made up of 50 individual sovereigns. States are not made up of individual fiefdoms in confederation with one another. *coughVermontcough*
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Jan 29, 2018 17:29
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exploded mummy posted:*coughVermontcough* Vermont was claimed by New York but at the same time was actually an independent sovereign. It was more just affirming the true nature of things rather than actually splitting Vermont off of New York proper. I didn't include that split because it was a territorial dispute between the USA (via the state of new york) and the country of Vermont that was mooted when they were added into the USA.
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Jan 29, 2018 17:31
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Dead Reckoning posted:It's unsolvable in moral philosophy, but it's sort of fundamental when you're talking about living in a common law system that recognizes the idea of precedent and legal reasoning. Which is why "but there's no precedent for this decision" is a silly objection, because all precedent traces back to a decision that was made with no precedent for it. If "but there's no precedent" were reason enough to reject a decision we'd have to reject all of common law. Like, you get that courts establish new precedent all the time? Including very recently? All the way up to the present day? Some English country judge in 1602 didn't have an absolute monopoly on reasoning and wisdom and we don't have to nor should we freeze our conception of justice as a preserved specimen from the Early Modern Era? That sticking with a pre-modern conception of human rights forever because it's tradition would actually be really bad?
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Jan 29, 2018 17:41
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Hieronymous Alloy posted:This seems like one of the big issues in the current discussion -- I'd argue that "the idea of equal protection" is at best confusing and at worst not (legally) relevant outside the specific requirements of the constitution. "Equal protection" as a phrase means the specific requirements of the Constitution, not some broader principle. I'd suggest using a different phrase for the broader principle -- maybe "equal representation" ? Equal protection of the laws is a pretty simple concept and expands well beyond equal representation. The issue is that the Constitution, as the supreme arbiter of laws, is not required to comply with any higher principle so you need to separate the discussion of what the principle would require if we required the constitution to comply with it (most of the other stuff that is obviously impermissible has been stricken by now), from what the law requires (nothing, because there is no higher law that the constitution is required to comply with). The real crux of the issue is DR is trying to use the fact that the Constitution is not bound to follow any particular principles as a reason to not require state constitutions to follow those principles. But the Constitution is supreme over state constitutions, therefore we can discuss what equal protection legally requires from states even though we cannot discuss what equal protection legally requires from the Constitution.
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Jan 29, 2018 17:50
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Abolish the concept of States
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Jan 29, 2018 17:57
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evilweasel posted:The real crux of the issue is DR is trying to use the fact that the Constitution is not bound to follow any particular principles as a reason to not require state constitutions to follow those principles. But the Constitution is supreme over state constitutions, therefore we can discuss what equal protection legally requires from states even though we cannot discuss what equal protection legally requires from the Constitution.
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Jan 29, 2018 18:02
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