If Gerrymandering Dies, It’s Because We Have A Living Constitution

If I had a dollar for every time a smug conservative told me “the Constitution cannot be based on what a judge eats for breakfast,” I’d have enough money to buy my own Supreme Court justice. That’s not a guess. The Heritage Foundation probably gets a donation every time that phrase is uttered, and they were able to buy enough Republicans to steal an entire Supreme Court seat for them, which they filled with Neil Gorsuch.

Originalist attacks on basic progressive thought have been so successful that, linguistically at least, fewer and fewer people will claim to be proponents of a “living” Constitution. You’ll see more scholarship about “progressive originalism” nowadays than living Constitutionalism, because progressives are nothing if not eager to cede the framing of a debate to the forces of conservatism. But the battle between whether we place more emphasis on founding or modern principles still rages, even if there are fewer people like me who openly disregard whatever a collection of 18th century slavers and misogynists thought they were creating. Just because you planted the tree to hang me doesn’t mean I’m bound to use it that way.

Despite the good press originalists receive, there have been many important victories for the living Constitution in recent years, even though those victories are no longer really talked about in this way. Somewhat obviously, the founding fathers had no problem with gay bashing. Neither did the Lincolnites who wrote the 13th, 14th, and 15th Amendments. And yet, because it’s the goddamn 21st century already, we found some way to include the LGBT community into the grant of “equal protection,” without needing a whole new amendment to do it. The Constitution evolved to include those people, because were are a better civilization now than we were 200 years ago.

Of course, originalists who would never support gay rights still try to glom their philosophy onto this new grant of rights, with some talk about original intent. Progressives, who want the practical victory and not the theoretical ground, grant them their bottle and say, “Yes, yes, equal protection really always meant gay people too.”

But we might be on the cusp of something that cannot be explained away by either side as a “return” to founding Constitutional principles. We might be about to do something that can only be intellectually explained as a massive change in Constitutional interpretation, based on our modern circumstances. If political gerrymandering goes down, it will be because courts say, “Yeah, this thing that used to be okay is not okay anymore because we need to be better than we used to be.”

We’re all waiting with anticipation the Supreme Court’s decision in the gerrymandering case, Gil v. Whitford. You don’t need me to tell you how important that case is, but here’s me telling you how important that case is.

In the meantime, the Fourth Circuit today struck down a gerrymandered North Carolina map so hard that I’m surprised they didn’t quote Ezekiel 25:17 at the start of their opinion. From the New York Times:

Judge James A. Wynn Jr., in a biting 191-page opinion, said that Republicans in North Carolina’s Legislature had been “motivated by invidious partisan intent” as they carried out their obligation in 2016 to divide the state into 13 congressional districts, 10 of which are held by Republicans. The result, Judge Wynn wrote, violated the 14th Amendment’s guarantee of equal protection.

And you will KNOW my name IS THE LORD, when I lay my vengeance upon thee.

It wasn’t too long ago that courts looked like they were about to rule partisan gerrymandering an unjusticable “political question” that was beyond their scope to decide. Now we’ve got judges calling the same “invidious partisan intent” a violation of the 14th Amendment.

What changed? I can tell you it wasn’t the text of the Constitution! And it’s not like we’ve developed a new, deeper sense of what the framers really meant by “political question” in the past 20 years.

Gerrymandering is not a philosophical principle as much as it’s a technology. And that technology has now far outstripped our ability to protect ourselves from it. Gerrymandering is one thing when it’s two state pols in a cigar room with some Rand-McNally maps. It’s an entirely different tech when it’s a supercomputer running an algorithm that knows what time of day everybody on your block goes to the bathroom.

Originalists will tell you that every new technology can be analogized to some older technology, and that the rules governing the old tech can be extended to the new situation. A car used to be a carriage used to be a horse that Washington rode in on without a saddle so… federal seat-belt laws are unconstitutional or something. Progressives are more likely to say “THIS IS SOME NEW S**T!” and try to maintain the spirit of Constitutional principles while addressing the novel problems presented by modernity.

If gerrymandering gets smacked down — and it’s still an open question because Anthony Kennedy’s breakfast is in fact a matter of national concern — it will be a triumph of applying NEW Constitutional interpretations to NEW technological realities. Old gerrymandering was a political question. New gerrymandering is an attack on democracy. The judges might not put it that way, but if they knock down gerrymandering, it’ll be the dawn of a new political reality in America.

And they’ll have done it without needing a whole Constitutional amendment to make it happen.

The Constitution can live and breathe, if people would just let it. We don’t need to look towards our stupid past to give us a brighter future.

North Carolina Is Ordered to Redraw Its Congressional Map [New York Times]

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Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at [email protected]. He will resist.