SCOTUS Fails to Fix Partisan Gerrymandering

As I’ve written before, partisan gerrymandering is stealing democracy from voters. If you don’t think it is a big deal, take a look at my two-page gerrymandering “fact sheet”. Both Democrats and Republicans do it. In fact, last month the Supreme Court of the United States ruled in the case Rucho v. Common Cause, 588 U. S. ___ (2019), which involves partisan gerrymandering by Democrats in Maryland and partisan gerrymandering by Republicans in North Carolina. 

Democrats in Maryland drew districts to ensure that 7 of 8 Congressional seats would be held by Democrats; Republicans in North Carolina drew districts to ensure that 10 of 13 Congressional seats would be held by Republicans. In both cases, there was strong evidence that the partisan gerrymandering was intentional. In both cases, a lower Federal court threw out the gerrymandered maps. The parties in power — Democrats in Maryland and Republicans in North Carolina — appealed to the US Supreme Court. The two cases were combined into one case, and the Supreme Court overturned the lower court rulings.

I was deeply disappointed by the Court’s decision. Partisan gerrymandering is corroding democracy and needs to be eliminated, so I wanted to understand the ruling more deeply. I’ve never before read a Supreme Court decision, but I decided to give it a try. The document, available here, is 72 pages in total, comprising 5 pages of unofficial syllabus, 34 pages of the Court’s opinion, written by Chief Justice Roberts, and 33 pages of the dissent, written by Justice Kagan. It was easier to read and understand than I expected. You might want to give it a try.

The big question is where do we go from here? I’ll get to that, but let me start by summarizing the ruling and the dissent.

The Ruling

The bottom line, in Justice Roberts’s own words (opinion, p. 35), is this: 

“Excessive partisanship in districting leads to results that reasonably seem unjust. But the fact that such gerrymandering is “incompatible  with democratic principles,” … does not mean that the solution lies with the federal judiciary. We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts.”

So, partisan gerrymandering is bad, but we’re not going to do anything about it. Which begs the question: Why not? 

The key issue, again in Justice Roberts’s own words (opinion, p. 7, emphasis his), is “whether such claims are claims of legal right, resolvable according to legal principles, or political questions that must find their resolution elsewhere.” He offers several arguments.

The Framer’s Knew About Gerrymandering

First, the Framers knew about gerrymandering and chose to let state legislatures deal with matters of districting, subject to checks and balances by Congress. Yes, the Court has intervened when districting plans violate the one-person one-vote rule or when districting has discriminated based on race, but prohibiting partisan interests in districting would go against the Framers’ intent.

It’s Hard and It’s Okay

Besides, prohibiting partisanship in districting is hard. It is not simple math like recognizing violations of one-person one-vote. How do we decide how much partisanship in districting is too much? If there aren’t clear criteria, the Court is engaging in politics, not making decisions based on law.

Furthermore, since the Constitution doesn’t require proportional representation, arguments based on lopsided outcomes like North Carolina’s 10 Republican and 3 Democratic Congresspersons resulting from an an almost even Republican/Democratic statewide vote split are irrelevant.

That leaves an appeal to “fairness,” but what does fairness mean? One person’s idea of fairness is another person’s idea of bias. This is too squishy and there are no legal standards for fairness. Besides, even if we could precisely define fairness, how much unfairness is acceptable? Is being a little unfair okay?

And, none of this matters because (opinion, p. 23) “securing partisan advantage” is a “permissible intent” even when that intent “predominates.”

We’ve Never Done This Before

Finally, we’ve never done this before (opinion, p. 31): 

“What the appellees and dissent seek is an unprecedented expansion of judicial power. We have never struck down a partisan gerrymander as unconstitutional—despite various requests over the  past 45  years. The expansion of judicial authority would not be into just  any area of controversy, but into one of the most intensely partisan aspects of American political life. … Consideration of the impact of today’s  ruling on democratic principles cannot ignore the effect of the unelected and politically unaccountable branch of the Federal Government assuming such an extraordinary and unprecedented role.”

In other words, we’re conservatives.

Dissent

I must admit that, because I lean liberal, I expected the conservative majority opinion to be ridiculous. And it is. Justice Kagan’s prefatory remarks in the dissent (p. 1) summarizes the situation perfectly:

“For the first time ever, this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities.

And not just any constitutional violation. The partisan gerrymanders in these cases deprived citizens of the most fundamental of their constitutional rights: the rights to participate equally in the political process, to join with others to advance political beliefs, and to choose their political representatives. … These gerrymanders enabled politicians to entrench themselves in office as against voters’ preferences.

And checking them is not beyond the courts. The majority’s abdication comes just when courts across the country, including those below, have coalesced around manageable judicial standards to resolve partisan gerrymandering claims. … In giving such gerrymanders a pass from judicial review, the majority goes tragically wrong.

After dutifully reciting each case’s facts, the majority leaves them forever behind, instead immersing itself in everything that could conceivably go amiss if courts be- came involved.”

After her opening salvo, Justice Kagan lays out the facts of the two cases and states (dissent, p. 8) that “[t]he majority disputes none of what I have said (or will say) about how gerrymanders undermine democracy.” 

What the majority does dispute is whether the courts can do anything about it. The majority basically says that gerrymandering has been with us forever, yeah, it sucks, but it is impossible to fix it, so leave the problem to the politicians.

Gerrymandering Has Been Around Forever

Yes, gerrymandering has been with us forever. But the world has changed: the advent of big data and powerful computers has fundamentally altered the nature of gerrymandering, making it possible to create district maps that are “far more effective and durable than before, insulating politicians against all but the most titanic shifts in the political tides” (dissent, p. 10). Modern technology has made moot the appeal to the Framers’ understanding of gerrymandering as an argument against action.

Can’t Fix It

Moreover, lower federal courts across the country have already solved the arguments about what constitutes fairness and the difficulty of establishing clear standards. 

The key idea is to continue to allow each state’s legislators to define its own notion of fairness — things like proportional representation, compactness of districts, respect for natural boundaries, etc. — apart from partisan gain. Thus, legislative process determines what is “fair,” as it should be. The question then to be asked is whether considerations of partisan gain are diluting the value of votes.

To determine this, one applies a three-part “test” to determine whether the plaintiff challenging the district map has a case:

  1. Intent:  The plaintiff must prove that the “predominant purpose in drawing a district’s lines was to entrench [their party] in power by diluting the votes of citizens favoring its rival.” (dissent, p. 16).
  2. Effect: Did the maps have the intended effect of diluting the votes of opponents of the party in power?
  3. Causation: Is there a “legitimate, non-partisan justification” (dissent, p. 16) for the maps as drawn? 

The most difficult part of the test is intent. The method proposed by multiple experts and adopted by the lower courts is based on some interesting statistical analysis: Start with the non-partisan criteria that a state defines for its districts. Then computer-generate many (thousands) maps that meet the state’s criteria but are otherwise randomly chosen. Look at how precinct-level vote counts from past elections would have translated into votes for Democrats and Republicans with each of the generated maps. Then line up the maps from most favorable to Republicans to most favorable to Democrats and determine how far the map in contention is from the median map. If the contended map is far to one side or the other, it is extremely unlikely to have occurred without partisan intent. Actual numbers and statistics can be applied.

The cool thing about this approach is that each state’s own criteria determine what is “fair”. The three-part test only measures “just what it should: the extent to which the pursuit of partisan advantage — by the legislators at this moment — has distorted the State’s districting decisions.” (dissent, p. 25).

Leave it to the Politicians

The majority contends that the way to fix gerrymandering is for the politicians to fix it. In fact, they point to the dozens of bills introduced to reign in gerrymandering. Justice Kagan nails the problem with that thinking (dissent, p. 30, emphasis hers): “… what all these bills have in common is that they are not laws. The politicians who benefit from partisan gerrymandering are unlikely to change partisan gerrymandering. And because those politicians maintain themselves in office through partisan gerrymandering, the chances for legislative reform are slight.”

What Now?

The Court’s decision takes the matter out of the hands of the Federal judiciary for many years to come. But gerrymandering is so corrosive to democracy that we must make progress in other ways. This will require action on multiple fronts, much of it underway in various places.

State Constitutional Amendments

The Supreme Court’s failure to act doesn’t preclude state-level action. 

Indeed, in 2000, Arizona adopted a constitutional amendment that removed redistricting from the hands of the state legislature and put it in the hands of an Independent Redistricting Commission. This amendment was challenged in the US Supreme Court but upheld. A new commission is appointed decennially to accomplish redistricting based on new census data. Two commissions have created maps and a third commission will be appointed in 2021. There have been legal challenges to the commission’s work, but the commission has prevailed.

And, in 2010, Florida adopted two constitutional amendments on redistricting. Here’s a key clause: “No apportionment plan or district shall be drawn with the intent to favor or disfavor a political party or an incumbent …” Politicians in the legislature still draw the district maps, but without intent of favoritism. In this case, the party in power (GOP) didn’t comply and the League of Women Voters sued. A trial court ruled that the districts drawn in 2012 violated the amendment and ordered the districts to be redrawn. This was appealed to the Florida Supreme Court, which agreed with the trial court that the amendment had been violated, but overturned the remedy of starting from scratch on the redistricting, instead requiring certain districts to be redrawn. 

Voters pushed the Arizona and Florida constitutional amendments: Voters bypassed the politicians in power to get the amendments on the ballot and then passed the amendments. 

Eighteen states allow voter-initiated constitutional amendments. In these states, amending the state constitution is a viable option for defeating (or reducing) gerrymandering.

Challenges in State Courts

Some state constitutions already contain language that could be interpreted to prohibit extreme gerrymanders. In those cases, suit can be brought in state courts alleging violation of the state constitution. The US Supreme Court’s ruling has no bearing on such suits.

The poster child for this approach is Pennsylvania, where Article I, Section 5 of the Pennsylvania Constitution is “Elections shall be free and equal; and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.”  The League of Women Voters brought suit alleging that the state’s 2011 districting plan violated this clause of the Pennsylvania Constitution. The Supreme Court of Pennsylvania ruled in 2018 that

“This adjudication was based upon the uncontradicted evidentiary record developed in the Commonwealth Court, wherein the Petitioners established that the 2011 Plan was a partisan gerrymander and that this gerrymander was extreme and durable. It was designed to dilute the votes of those who in prior elections voted for the party not in power in order to give the party in power a lasting electoral advantage. … On this record, it is clear that the 2011 Plan violates Article I, Section 5, since a diluted vote is not an equal vote.”

The Court established a deadline for the legislature to submit a suitable map for the Court’s approval. When the legislature failed to do so, the Court established its own remedial map based on inputs received from various parties. The US Supreme Court has already rejected a challenge to the Court-drawn districts.

A similar effort is underway in North Carolina, where Common Cause has filed suit in state courts alleging that the state legislative district maps violate the North Carolina Constitution. The case was heard on July 15th, 2019.  A decision is pending.

Many state constitutions contain language to ensure some notion of equal representation and Pennsylvania has shown that this can be a path to remedy extreme partisan gerrymandering. Hopefully, the ruling in the North Carolina case will add weight to this approach.

Independent Commissions

Arizona has shown that independent commissions are a viable way to improve districting. The Arizona commissions were established by voter-initiated constitutional amendment, which is not feasible in most states. 

Other states have adopted independent commissions through voter-initiated referenda and voter-initiated constitutional amendments. Currently, in addition to Arizona, Alaska, California, Colorado, Idaho, Michigan, Montana, and Washington use independent commissions. There is considerable variation across the states in how the commissioners are selected and the rules under which the commissions act. 

Raising Awareness

Ultimately, defeating gerrymandering requires getting more and more voters aware of how they,  as individual voters, and we, as a representative democracy, are being severely harmed by partisan gerrymandering. People who are not politically active often are not aware of just how significant gerrymandering is in letting politicians remain in power  despite voters wanting change.

Summary

There’s no arguing that the Supreme Court’s decision wasn’t a big setback for our democracy. It means that probably for a generation we’re unlikely to see a country-wide solution for extreme partisan gerrymandering.

But as a few states have shown, it is possible to make progress state-by-state. All of us who care about democracy need to help engage and educate our friends and colleagues, and to support organizations like Common Cause and the League of Women Voters who are carrying on the fight.

12 thoughts on “SCOTUS Fails to Fix Partisan Gerrymandering”

  1. I’m not going to defend the right – there is plenty to criticize on the right as well.

    How do you intellectually justify gerrymandering as conflicting with the 14th amendment, but are ok with the National Popular Vote Interstate Compact? Doesn’t the NPVIC circumvent the rights of american voters in a very similar way?

    1. Interesting questions.

      The Electoral College approach to electing the President circumvents the one-person, one-vote ideal of democracy: It increases the impact of a vote in low-population states because such states get more electors per voter than do high-population states. It also increases the impact of votes in so-called swing states, where voters split their votes almost equally for the major-party candidates and decreases the impact of votes in states whose voters almost always vote overwhelmingly for the candidate of one of the major parties. (The analogy to packing and cracking in gerrymandering is striking!)

      The Consitution gives control of how electors are appointed to the states. Indeed, there has been a lot of change in how this is done over our history. Even today, there remain significant differences among the states in how they choose their electors. These differences are not just cosmetic and affect campaign strategies and election outcomes.

      The NPVIC is simply another means that a state can use to choose its electors. States that adopt it are saying that they value choosing a President based on the one-person, one-vote democratic ideal above using an approach that can yield a President who has lost the nationwide popular vote.

      I don’t see how this circumvents anyone’s rights. Indeed, I think that it would (if it passes in enough states) make our Presidential elections more reflective of our democratic ideals.

      1. Thats a nice response, but notice how you moved from making a constitutional argument to an argument on your personal beliefs (“one-person, one-vote ideal of democracy”). America is not a democracy. it’s a constitutional republic. Our system of government, as designed and as embodied in the constitution gives more power to citizens of rural states. the NPVIC deprives the citizens of rural states from their constitutional right of their voting power.

        Now, you can argue that is wrong and we should change our system government, You can argue, as you have that the states can assign electors as they wish, What you cannot do is use the 14th amendment equal protection clause to argue that states cannot set district boundaries as they wish, but can assign electors in any manner they choose. The argument just does not work.

        1. One-person, one-vote is not just a personal belief (although I do believe in it). The Supreme Court ruled in Reynolds v. Sims (1964) that the Congressional districts drawn by state legislatures must contain approximately equal numbers of people — in other words, one-person, one-vote.

          But, to your main point: I am not arguing that states can assign electors in any manner they choose. The Constitution says that. Indeed, it used to be common for state legislatures themselves, without voter involvement, to appoint electors. This has changed in all states to some process that directly involves voters. But legislatures are free to change that, as adoption of NPVIC would do. Such changes would still be subject to challenge under the equal protection clause and we’d have to see how the Court would rule on such challenges.

          As with so many issues, there are multiple, conflicting forces in play that have to be balanced. That’s why all this stuff is hard and contentious.

          I think we’ve taken this conversation about as far as is useful (maybe further 😀), so I’m going to close the post to further comment. Thanks for all the thought you’ve put into it.

  2. I don’t think you understand my view point because I am not arguing for originalist interpretation of the Constitution. I agree that gerrymandering is wrong. I also agree that we should interprets the Constitution considering today’s society. I don’t think this is what you are arguing for.

    The writers of the elections clause anticipated exactly the situation in front of us. That is why they wrote “hall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations”. The expected that things may change and so they empowered the state legislature and congress to make and alter regulations.

    You are unhappy with the action taken by a state legislature, or by congress, and therefore want to supreme court to intervene. Your issue is not with a modernizing interpretation of the constitution, but with law makers not making laws that you think are important. That’s not what the supreme court is for. The argument is a common argument from the left. In cases where state law doesn’t give the desired outcome, the left argues the issue should be handled at the federal level (minimum wage, gun control, abortion rights, lgbt marriage etc.). Where federal law doesn’t generate the desired outcome the left argues the issue should be handled by federal court (immigration, lgbt rights etc). The argument is always that there is a fundamental human or constitutional right that is being harmed, when interpreted through the lens of modern society.

    I hope we can agree on the argument above, without going into the details of what should he interpretation of the lens of modern society be. I specifically avoided that portion of the discussion because I think it would make it much easier to agree on a useful framework for discussion. I would also argue that the legislature, as a representation of society, is a much more appropriate body then the court to define what the lens of modern society sees because its members are empowered directly by society and are elected by society frequently.

  3. An outstanding analysis of the Supreme Court ruling, and the potential for State remedy. I believe the Supreme Court ruling was politically motivated to enable Red States to continue Gerrymandering unhindered. Yes, Democrats do it too, but in my opinion, far less. The Court’s shying away from ruling on the constitutionality of Gerrymandering, which clearly infringes on voter rights is a complete abdication.

  4. Gerrymandering is wrong. The supreme court is right however, that it has no standing in this case.

    The elections clause says “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.”.

    The power to regulate elections is then with the state legislatures, and with Congress. Congress has passed several laws and a handful of constitutional amendments to regulate elections, including the 19th, 24th and 26th.

    The role of the supreme court is not to dispense justice, or protect democracy, or to help in cases where citizens don’t like how our governmental system is set up. The mandate of the supreme court is defined by the constitution. There is an owner for these gerrymandering issues – the state legislature and congress. It is their job to deal with this problem. The court should not be the one responding to technology innovations by making new laws. This is the legislative’s branch job.

    Always keep in mind that if the court steps outside of its mandate to support a position you believe in, it could also step outside of its mandate to support a position you find deplorable. It’s best to be slow and thoughful when playing with the fundamentals of our governmental system. What may be seen in first glance as progress might be a giant miss-step.

    1. There are multiple clauses in the Constitution that come into play, not just the elections clause you cite. There are strong arguments and precedents that partisan gerrymandering violates the 14th Amendment’s Equal Protection Clause and the First Amendment. For brevity’s sake, I did not go into those arguments, but I refer you to Justice Kagan’s summary of them in the dissenting opinion, pages 11-13.

      I’d also like to observe that Federal Courts have often imposed restrictions on implementation of state responsibilities. For example, it is a state’s responsibility to determine qualifications for officeholders in the state. The NC Constitution, Article VI, Section 8 says “The following persons shall be disqualified for office: First, any person who shall deny the being of Almighty God. …”.

      However, in Torcaso v. Watkins, 367 U.S. 488 (1961), the US Supreme Court ruled that a similar requirement in Maryland violated the First and Fourteenth Amendments of the US Constitution, thus restricting a state’s ability to implement a policy for which it is responsible.

      Had the Court ruled the other way in the partisan gerrymandering case, they would have been determining that partisan gerrymandering violates the First and Fourteenth Amendments of the US Constitution and, therefore, states may not employ partisan gerrymandering as they execute their responsibilities under the elections clause.

      So, while I think that your caution about the Court stepping outside of its mandate is valid, I disagree that a ruling against partisan gerrymandering in Rucho v. Common Cause would have been outside the Court’s mandate.

      1. I’m making a pretty simple argument. It takes significant creative interpretation to rule that gerrymandering is in conflict with the 14th or the 1st amendment.

        The equal protection clause reads: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”. If gerrymandering is depriving citizens the rights to participate equally in the political process, the same can be argued for all campaign financing (rich people have more impact), college acceptance (college graduates are more informed and better spoken), health care (sick people have a hard time participating in the political process), etc.

        The level of creativity required to apply the equal protection clause (or the 1st amendment) to gerrymandering is so large, that it would have implications that undermine many of the fundamentals of our society. Now, we both agree that gerrymandering is wrong, the question is what wrongs would the supreme court cause by adopting Kagan’s thinking, That would be something that any thoughtful thinker would need to carefully consider before cheering for him. It’s also a good way to combat confirmation bias.

        Much of the rift in this country is caused by one sided thinking, where people considers only the necessity (or the immorality) of words, actions or policies without considering the impact of taking (or abolishing) them. Very few things in this world are black and white. Scotus’ involvement here would do more harm than good.

        1. I understand your viewpoint, which is essentially to argue for an originalist interpretation of the Constitution: Read the words, understand what they meant when they were written, and act accordingly. There are certainly legal scholars and politicians who advocate this approach. Antonin Scalia was one of the foremost proponents of that approach. Other legal scholars and politicians advocate a “living constitution,” which interprets the Constitution considering today’s society, not just meaning at the time of writing or ratification of amendments.

          I’m certainly no legal scholar, but my viewpoint is that a Constitution must be a document that paints the big picture of how our government and society work, with most of the details filled in by laws passed and repealed over time. But those laws must conform to the big picture painted by the Constitution, and as interpreted in the context of today’s society. This is essential because the Founders could not possibly have understood how social, economic, and technological changes over hundreds of years would affect life.

          That’s what’s happening here. The Founders couldn’t have understood the devastating impact on democracy of gerrymandering carried out with modern computers, big data, and modern communications. It is reasonable for the Court to interpret the fundamental freedoms provided in the Constitution in light of those changes, much like they have had to do with concepts like “unreasonable search and seizure” in the day when much of our lives is on our phones.

          I agree with you that if gerrymandering is “depriving citizens the rights to participate equally in the political process,” then so is our current campaign financing mess. In that case, there was law that prohibited some of the most egregious buying of influence by corporations, but the Court ruled that that law violated the big picture laid out in the Constitution.

          That decision was particularly interesting in light of your view of how the Constitution should be interpreted. Important restrictions on corporate buying of influence were thrown out in the Citizens United case based on the “corporate personhood” concept, i.e., that corporations have at least some of the protections under the Constitution as natural persons. That notion comes from interpretation of the word “person” in the 14th Amendment. The corporate personhood concept is an example of the danger you describe: it was pushed in the 19th century by the railroads and has had expanded influence over time. But nowhere does corporate person appear in the explicit words of the Constitution. This is a good example of the danger you state of “Scotus’ involvement her would do more harm than good.”

          Nevertheless, I still think that the Court must provide interpretation in the modern context. When they go “wrong”, the legislative branch should act to correct the mistake. That’s what needs to happen to overturn Citizen’s United.

          1. I don’t think you understand my view point because I am not arguing for an originalist interpretation of the Constitution. I agree that gerrymandering is wrong. I also agree that we should interpret the Constitution considering today’s society. I don’t think this is what you are arguing for.

            The writers of the elections clause anticipated exactly the situation in front of us. That is why they wrote “shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations”. They expected that things may change and so they empowered the state legislature and congress to make and alter regulations.

            You are unhappy with the action taken by a state legislature, or by congress, and therefore want the supreme court to intervene. Your issue is not with a modernizing interpretation of the constitution, but with law makers not making laws that you believe are important. That’s not what the supreme court is for. The argument is a common argument from the left. In cases where state law doesn’t give the desired outcome, the left argues the issue should be handled at the federal level (minimum wage, gun control, abortion rights, lgbt marriage etc.). Where federal law doesn’t generate the desired outcome the left argues the issue should be handled by federal court (immigration, lgbt rights etc). The argument is always that, when interpreted through the lens of modern society, there is a fundamental human or constitutional right that is being harmed.

            I hope we can agree on this as a framework for discussion, without going into the details of what should he interpretation of the lens of modern society be. I specifically avoided that portion of the discussion because I think it would make it much easier to agree. I am trying to offer what I agree to up front.

            I would also argue that the legislature, as a representation of society, is a much more appropriate body than the court to define what the lens of modern society sees. Its members are empowered directly by society and are elected frequently.

          2. You are correct that I want the Supreme Court to intervene when a legislative body (Congress or in a state) takes an action that I don’t like. But not just any action. Only actions that violate a freedom or right guaranteed by the Constitution. In those cases, I want the Supreme Court to prevent violation of my (or someone else’s) Constitutionally-guaranteed rights. Partisan gerrymandering is exactly such an issue. So are lgbt marriage and abortion rights. Minimum wage is not such an issue in my mind; in fact, the minimum wage cases of which I’m aware are all about asking the Court to throw out minimum wage laws that have been passed by legislatures.

            You blame “the left” for using the court when “state law doesn’t give the desired outcome.” Yes, “the left” does that in the situations that I describe above, i.e., when a state law contravenes a freedom or right guaranteed by the Constitution.

            But “the right” does exactly the same thing. Examples: Citizens United (claims that campaign finance laws violate free speech rights for corporations, which get those “rights” through the personhood concept I described in a previous reply to you); Gun control (the cases that go before the Court are generally requests to strike down gun control laws passed by legislatures as violations of the 2nd Amendment). Both of these examples are interesting in that the “rights” being claimed are the result of what you have previously called “creative interpretation”.

            Although I disagree with you, I can intellectually accept your dislike of “creative interpretation”. But your characterization that “the left” does it misses the reality that “the right” does it, too.

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