Today on CONLAWPROF

The recent election results which followed political gerrymanders and other recent opportunistic reassignment of powers within state governments by lame duck legislatures—they have been described as “cheating”, “monstrous”, etc. I inquired about specifying the scope of the rule from which one could conclude that anything wrongful had happened. No one came forward with anything like a substantive answer. Had there been such an answer as to the scope of the rule, then I would have inquired about the source of that rule.

Professor ZZZ’s answer is to tell me what I already know and what no one could reasonably deny—that gerrymandering exists and it produces identifiable winners and losers—ex ante and ex post. I don’t disagree with that.

Where I disagree is with the normative judgment that these sorts of political behaviours are wrongful. The proponents of these conclusions—“gerrymanders as wrongs” and “monstrous”—don’t point to any particular democratic enactment making this behaviour a wrong. I never had an opportunity to vote on this issue or to vote for either: [a] any candidate (at least none come to mind) or [b] any national or state party promising to enact constitutional reform or regular legislation to stop such practices. On the other hand, this sort of behaviour has a rich history in our country—over vast spans of time. So maybe that is some argument that the people or country are not against it, or if they are, maybe it is not at the top of their list of priorities?

During my lifetime there have been several periods of time where the levers of the federal government and any number of states have been in the unified control of the Democrats. Did they run on platforms to forbid such practices and then implement such reforms? Answer: Nothing at the federal level, and inconsistent practice at the state level. The same is true for the Republicans. In such circumstances, complaining about legal conduct with a rich history, and doing so in hyperbolic and harsh terms, seems (to me at least) misplaced moral judgment. Captain Louis Renault: “I am shocked—shocked—to find that gambling is going on in here!”

Those people who are against these practices would (I think) be better off convincing the public that what the status quo allows is not best for the country and would seek support to implement such reforms. They could run for office, support candidates who and parties which would reform such practices, etc, etc—or they could just sit in judgment of...their neighbours, and people who have actually won elections and faced the voters, and others with whom they are having a vanilla political disagreement.

Some states have turned to purported non-partisan commissions. But the commission members are elected by the public or appointed by partisans—so whether you get better results by that method is hardly answerable as a matter of pure theory. One would have to look to practice—and then you’d still need a shared normative framework to determine if better results have been achieved. So at some point, even if you move to a commission, you might want to consult the people as to what the commission ought to do. Where has that happened?

If the [sincerely held] goal is to actually to convince the public toward institutional reform to end such practices [as opposed to intellectually sterile virtue signalling], you will need majorities, if not super-majorities. If you start that process by demonizing people who you are having a vanilla disagreement with, you are not likely to convince many (among those not already convinced). Such language—“cheating” and “monstrous”—will just lead to a pronounced Wilder/Bradley Effect (a/k/a Clinton/Trump Effect) (a/k/a Remain/Leave Brexit Effect). You won’t have political debate—you’ll have political silence. Those who disagree with you will not engage with you; they’ll lie to pollsters at election time, and then they’ll vote for Trump, and in the future, maybe Trump-squared. And I’ll add that among the many moderates who might be won over—they are liable to ask you...if this behaviour is so bad and deserves such hyperbolic characterizations—“What have you done to stop it, other than engage in strong language on CONLAWPROF?” And if they won’t ask that question, I will.

So go ahead, keep using language like “cheating” and “monstrous”, and keeping demonizing people with whom you disagree, and keep using hyperbolic language about normal politics without having first established a pedigree of personal conduct to stop such “wrongs”—and as you keep doing all that—you’ll get more ... Trump. But now I repeat myself.

Seth

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Seth Barrett Tillman, Today on Conlawprof, New Reform Club (Dec. 11, 2018, 2:04 PM), <https://reformclub.blogspot.com/2018/12/today-on-conlawprof.html>. 

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