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  1. #121
    What do you guys think of this take on the Harper vs Moore case.
    https://www.youtube.com/watch?v=ANrBplbZsFM
    Last edited by Fugus; 2022-07-07 at 07:52 PM.
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  2. #122
    Reforged Gone Wrong The Stormbringer's Avatar
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    Quote Originally Posted by Fugus View Post
    What do you guys think of this take on the Harper vs Moore case.
    https://www.youtube.com/watch?v=ANrBplbZsFM
    I think it's a solid one that expressed a number of things I've been talking about with other people. The seriousness if this case cannot be overstated. If there was a time for the Senate to cancel the filibuster and expand the court OR impeach these judges, now is the time.

  3. #123
    Quote Originally Posted by The Stormbringer View Post
    I think it's a solid one that expressed a number of things I've been talking about with other people. The seriousness if this case cannot be overstated. If there was a time for the Senate to cancel the filibuster and expand the court OR impeach these judges, now is the time.
    If it comes to that, there they will be guaranteeing a civil war as they ensured that would be the only way to remove them as they could retain control even with 80% of the population against them when they can gerrymander, disenfranchise voters, and then start throwing out whole districts of votes on top of that with zero oversight.

    Either that or we would be done as a nation and would deserve the same treatment we give Russia.
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  4. #124
    Bloodsail Admiral tehdang's Avatar
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    My point is that courts break precedent sometimes. It's a thing they are allowed to do. Like the SCOTUS. They've been doing a lot of that lately. And if people don't like that, there are checks on the courts.
    The precise nature of those checks were and are in question. I happen to think long established precedent requires bigger explanations for why it's necessary to reverse. The case in question did not provide it.

    As I said: LOTS of things aren't in the constitution. Was Heller decided incorrectly? Self-defense isn't in the Constitution after all. Seems like Scalia made a pretty broad interpretation there...(I think that was within his rights, even if I disagree). Oh, and should SCOTUS overturn all laws pertaining to defamation, threats, campaign finance, inciting violence, and public nuisance because restrictions on free speech "aren't in the constitution?" Is that what the implication is?
    The text of the second amendment is available, as is the text of the Heller decision. It was pretty obviously drafted to protect an individual right to keep and bear arms, partly in service to the ability to call up a Militia, and preserve the security of a free State.

    First amendment jurisprudence is pretty close to the first amendment. I'd give that one a read too if you're unaware about modern questions of stuff like incitement and defamation and its relation to the first amendment.

    It's utterly embarrassing that Alito uses this same "but it's not specifically in the constitution" line, when he knows damn well that there are mountains of precedent and constitutional law regarding situations not actually found anywhere in the Constitution.
    Ironically, he spent a lot of time examining all the possible avenues where abortion was understood to be legal and thus unmentioned by the Constitution. Other situations aren't as fully missing as is the case of abortion.

    No, I don't prefer that. The context here is the NC GOP which is obviously attempting to limit the power of roughly half of its populace in a manner I consider egregious. You don't get to extrapolate out of this one situation to assume that I don't believe legislatures to be the primary and preferred course of action. But if legislatures don't act within the constitution, they get checked. This particular check on the legislature was in defense of democracy, which I value.
    Legislatures are the primary course of action for the population. Why in heavens would they have such regular elections if not? This is foundationally ignorant. Spend more time convincing people to vote as you do, or maybe they're too disinclined to do anything other than answer phone pollers.

    Also, reminder that Brown vs. the Board of Education was decided a whole decade before Congress ended segregation. Many of the rights that Clarence Thomas personally wants to overturn were also conferred in such manner. It's not like there isn't precedent for courts acting in defense of rights when a legislative body won't.
    Reminder that that particular decision was made necessary by a different, idiodic Supreme Court decision. Namely, Plessy vs Ferguson. The Supreme Court inventing bs rulings totally detached from the constitution can be rectified by the same court later. Don't confuse corrections to prior decisions, like Roe, with judicial adventurism, like Moore v. Harper.

    Perhaps you should look up public opinion polling on partisan gerrymandering. You'll find that "the people" (including majorities of GOP voters) agree with me (and it's not just gerrymandering, there are plenty of issues where the GOP policy is broadly unpopular). It's almost as though a legislature designed to not actually be representative of "the people" might not agree with the people! It's also...theoretically...possible (*wink*) that a legislature could pursue its own power in a way that would limit the voters' capacity to check them. Seems like a bad thing, eh?
    If they were as brave to pollsters as they were to electing representatives, we would be having a very different conversation. Or maybe, we wouldn't be having a conversation at all.

    Alright my dude: what recourse is there for a populace disenfranchised by gerrymandering? Please tell me that "nicely ask the gerrymanderers that benefit from the gerrymandering not to gerrymander anymore" is gonna work. I could use a good laugh. (Also, to reiterate what I said above, the people are with me.)
    Same response as before. It's convenient how often you can overlap "we're disenfranchised by gerrymandering" and "not enough people agree with me, so I must go outside legislatures making laws to achieve my ends."

    1) North Carolina elects their Supreme Court justices. If the voters don't like their decision in this case, there are two Democrat-held seats up for grabs. Hey, they have an opportunity to check the court!
    2) The US constitution hasn't changed recently either. That hasn't stopped the current SCOTUS from breaking precedent frequently in the past several years. Very "convenient" how Alito's deep concern for precedent is rather selective, isn't it?
    3) NC GOP isn't arguing that the state court overreached the state constitution; their petition for a stay is based on the US Constitution's Elections clause. This is literally a case of the NC GOP asking the SCOTUS to make up new guidelines that would strip power from state courts (and thus nullify a ruling they don't like).
    Elects them not to make laws, but interpret laws. And they've been getting out of line, requiring a higher court to recall their ambitions back to their constitutional role. Just because they wish the constitution gave them power, does not enable them to stretch passages in the constitution to achieve their ends. I expect a narrow ruling on this matter when it's decided.

    I do like things that I like. Like warm chocolate chip cookies. Mmmm. Maybe states should do chocolate chip cookies.
    If the justices declared the constitution guaranteed you warm chocolate chip cookies, I have no doubt you'd decide that it was clear interpretation of the constitution. Mostly from what other things you allow, and from your lack of opinion on where it ends.

    Are courts not part of the Democratic process now? Was the court's decision in Brown the "wrong way?" Are courts not allowed to break precedent?
    Stop quoting the section and then responding to something else. Your statement was in regards to what you would prefer (not justices doing it) but what you'd permit in its absence (justices doing it). Legislatures refusing to do it is an answer. "No." Be a little more accepting of No and maybe I'd allow you too to be a defender of democracy.

    Also, should people living in a democracy be able to vote democracy away? Should courts defend the constitution and democratic principles therein of a country or state? Because if you let democracy wither, you find yourself in a situation where "the right way" doesn't fucking matter anymore. Shouldn't a country that values democracy make point of preserving it? I'd rather "free and fair representative democracy" than "hollow shell of a democracy, but at least we did it the 'right way.'"
    But again: I don't consider the NC court's actions to be "the wrong way." They interpreted the state constitution, which is their job. If the people of NC don't like it they can put new justices on the bench. And I'll add that I'm also not advocating that courts take more power than they already have- they always had the power to make this decision.[/quote]Apparently, your view is that you yourself get to decide when people are "vot[ing] democracy away" and then intervene by means of justices. I think you don't deserve that power, nor the justices to which that is attached. If you want to do away with gerrymandering, don't be some insane activist that says it was already illegal under the constitution, just waiting for some brave justice, but propose the amendment. If it's not against the constitution, as it obviously isn't in my view, choose the democratic option and campaign for a change in representatives. I'm sorry if you feel strongly the fact of you not getting your way is reason enough to deserve court intervention.

    Despots: working hard for fair representation of all citizens! Despots: renowned defenders of checks and balances! Despots: staunch opponents of gerrymandering and other ratfuckery! Despots: proudly supporting the right of people to vote them out of office! Despots: known to always uphold the rights of the minority! Despots: stalwart paragons of free and fair elections!
    If you'd just stop justifying "lack of action" as reason to "forgo the rules," then I'll stop pointing out that you're following the playbook of despots.

    The NC GOP is claiming that the NC court violated the US constitution's electoral clauses based on guidelines that the SCOTUS will now determine after the fact. They are asking the SCOTUS to create new precedents explicitly to diminish the checks against the legislature.
    Umm ... the NC Supreme Court determined that they had the power to act based on an extremely radical reading of the constitution. The Supreme Court will rule if they actually didn't violate the US Constitution or NC state constitution. You're not some inheritance of privilege to force others to read things in the way you prefer.

    So apparently you are utterly blind to what the GOP has been doing recently.
    Oh, no, the bad people made plots that failed on multiple levels, at multiple times. I still don't accept your doomsday scenarios are reason to forgot the actual body that makes laws and empower the body that ought not to make laws in their absence. Again, despots always claim this is the emergency where courts need to declare their will in line with your own will. It's an affront to democracy.

    The GOP isn't on the side of 'checks and balances' here. They are explicitly asking SCOTUS to limit the checks that state courts have on election laws. I've been on team 'checks and balances' the whole time.
    You're still doggedly refusing to accept checks on courts, but demanding checks on legislatures. That isn't 'checks and balances.' That's "only the checks I wish to be imposed count as checks."

    And then the NC GOP spent the intervening years from 2015 until now making it clear that they want to minimize the power of their opposition, whether through more gerrymanders, or through multiple attempts at stripping the Democratic governor of various powers. They've had a reeeeaaal problem making district maps that fit the constitution...perhaps the court noticed that?
    Oh noes, here comes the checks on other branches of government that Gestopft wishes didn't exist! I'm not joining your ride of checks and balances, only when they conform to your desired policy outcomes.

    Also, the makeup of the court changed in those years too. I've heard that when the makeup of a court changes, precedents are sometimes changed. I dunno, maybe we've been having this discussion at the national level, where conservatives are celebrating the SCOTUS's routine thrashing of precedent? Seems like a relevant thing to point out. But go ahead and tell me why the conservative SCOTUS majority's skewering of precedent that has just so happened to coincide with Trump's nomination of three justices (and also just happens to coincide with GOP policy preferences) is TOTALLY not at all similar.
    Interestingly enough, the state constitution doesn't change as the makeup of a court changes. That's why we're a nation of laws (or ought to be a nation of laws) not a nation of men (~a dozen justices wearing robes).

    And yes, the Independent State Legislature Theory that they are basing their case to the SCOTUS on is a fringe legal theory. It's something that has been mostly ignored for a long time, but the GOP dredged up rather recently because they have number of swing states gerrymandered in their favor.
    I've never accepted that any limits on State Supreme Court power means an acceptance of a fringe legal theory. If the courts have no independence, or the legislature has no independence, than neither is a check on the other.

    Just because the GOP is trying to shrink judicial powers doesn't mean I'm pushing to expand them. I'm not sure "powers" is even the right word there, though. Because by your apparent definition of "powers," every case where the court decides what is or isn't "protected speech" would be an expansion of judicial powers. Or any case where they have to interpret the Establishment Clause. Every case where a judge has to make a determination in the absence of specificity would seemingly "expand judicial powers," but I don't think that's really the right way to phrase it. Laws are often vague. Constitutions especially so. Defining limits that aren't explicitly spelled out is just...a thing that judges do. And by necessity, I would add. I don't think changing the reasoning for defining the limits is necessarily an "expansion of power" in the way I would use the phrase. It's not exactly a secret or a scandal that different courts interpret the relevant constitutions in different ways. Legislatures can write a law to overrule the precedent or revisit a constitutional provision to make it more explicit if they think the interpretation is grossly off-base.
    It's not in the constitution. NC has free elections every cycle. That isn't imperiled by district boundaries. I have trouble accepting that you actually believe judges are capable of ruling fairly to limit their own power. Give another reading of checks and balances.

    What do these have to do with each other? I'm not seeing how they are connected or in conflict.
    -Courts check the actions of the legislature against the constitution as they interpret it. This is their job. If the people/legislature/etc. feel strongly enough that the court has interpreted incorrectly, there are steps that can they can take to change that
    -Courts and their interpretations are not above politics and ideology. I hold this true for justices of all stripes, and say it not as a positive or a negative, but as an observation of the way things are. Should judges think of themselves as ideological and/or political actors? No, of course not. They should strive always to ground their deliberations within the relevant law(s) and the constitution. But every judge deciding a high profile case is going to be in some way affected by their own ideology and/or the politics surrounding the decisions they make. These factors are going to affect the way they interpret constitutional and legal provisions. This is just unavoidable.
    Courts power is limited by the constitutions by which they declare some laws unconstitutional. Knowing that judges are not immune to partisanship and ideology is a reason that their power is limited. That's why their particular partisanship is placed lower than the actual legislative actors in making laws. It's better to have many representatives arguing in a state congress (of differing types) than justices determining that their policies can be found in stretched readings of constitutional phrases.

    I am not a constitutional scholar, nor have I been to law school (which is a rare thing you likely have correctly assumed about me). I can't say that I have enough information to know where I would place those limits. What I do know is that people with extensive legal and constitutional study and extensive experience can have very significant disagreements about interpretation
    I'm not talking to whoever you want to do your thinking for you, I'm talking to you. I think the NC Supreme Court went beyond the limits of state constitutional interpretation, and made clear in the text of their decision. I have read other lawyers and constitutional academics that both agree with the opinion I reached, and disagree. So when I find someone utterly incapable of setting any limit, whatsoever, into what justices can decide is prohibited or mandated by constitutions, I put it to them that they're hypocritical on the concept of checks and balances and ought to find some limit they can agree with.

    Gerrymandering is definitionally disenfranchising voters. The explicit intent of it is to maximize the power of one group, proportional to their numbers, while mimimizing the power of another. It lowers the degree to which a legislature needs to be responsive to its voters and the degree to which is can be held responsible by its voters. Take Wisconsin for example: in the State Assembly election of 2018, the Democratic candidates got over 200,000 more votes than the Republican candidates did, which was an 8-point margin. But Wisconsin is heavily gerrymandered, so despite winning the majority of votes, the Democrats not only didn't have the majority in the State Assembly- the GOP was only three seats (out of 99) away from a supermajority. In order to actually win a simple majority, the Democrats would essentially have had to win 60-40 in the statewide vote. Do you really think this an acceptable distortion of the will of the people? Do you not think the Democratic majority of voters were disenfranchised by that? Are you going to tell me that yes, in fact, minority rule is acceptable? That it's ok that the party preferred by the majority of voters should have to win 60% of the votes to actually "win?" (Perhaps "disenfranchise" isn't the precise word since gerrymandering doesn't literally deprive an individual's right to vote, but I think you get what I mean...)
    It's a flawed system that nonetheless puts district boundaries within the remit of the voting process. The Democrats have focused their efforts in core constituencies localized in tiny geographical areas. Surpluses there do not equal ownership of the state by default. They should expand their ideological bounds and recruit candidates to run in other areas of states, as Republicans did during Democratic gerrymanders of the 60s 70s 80s and early 90s. Once lost, you shouldn't despair upon gaining it again.

    Also- are you someone who supports the Electoral College? Are you the kind of person that would bring up concerns about the "tyranny of the majority" if we were having a discussion about whether or not to get rid of the Electoral College? I don't want to assume your views, the way you do mine, but you do seem fairly prone to defending institutions as they are. Anyway, I do think it's only logical that a person who supports the Electoral College, and maybe says things like "New York and California shouldn't get to decide things for everybody" would be against Gerrymandering on principle, because gerrymandering is nothing if not the tyranny of the majority- or in some cases, minority.
    We're covering such large ground in US constitution Article 1, State Courts, Supreme Courts, gerrymandering, and the amendment process, that I don't really want to bring in the Article 2 powers as well. The territory of this discussion is already so broad.

    This is "constitutional and legal interchange" that has been mostly ignored for the last century or more, and now that the GOP suddenly rediscovers it and finds it favorable to their interests, I'm supposed to take it seriously? Are you hopping on the Independent State Legislature Theory bandwagon now that it's cool?
    The court decision in question was determined to be unjudiciable for more than 200 years, and as recently in a decision in 2015. Don't try to say it's been ignored for the last century.

    But to be clear: fuck ISL. The notion that specifically election laws shouldn't be subject to judicial review, or should limited in that manner as compared to other laws is indescribably nuts. Law that determine how elections work are uhhh...pretty much the most important laws in a democracy, and should absolutely be measured against a state's constitution. Yeah, I'll probably take some lumps when a conservative-leaning court decides that an election law I like is struck down for 'reasons-' but I will certainly take "checks and balances" over "barely-if-at-all-checked legislative power."
    Judicial powers of review are constrained, and the constitution is not just a pretext for a creative writing assignment stretching any clause or phrase to mean what you don't like is also unconstitutional. The Supreme Court is primed to make a decision concerning that, and I'm happy to read the opinion, and concurrences, and dissents.

    Now you're just being dramatic. All I said was that I think there are more pressing concerns than "how should the Elections Clause should be interpreted."
    You said "defend democracy from the GOP," so I don't think you're in any place to call somebody else dramatic. Again, I don't think you should have any power to redistribute power based on who you feel is more threatening to democratic order.

    Oooh! I know this one! Trump! He's one of them!
    I don't think comparing your claims to Trump's claims is a good way to defend your claims. I'm happy to say your errand is as foolhardy as Trump's and will end in the same trash heap.

    That's not what they're ruling on though. Reminder; SCOTUS is being asked to determine post facto whether or not (via the Elections Clause) the NC SC has the authority to overrule districts at all.
    The NC Court's decision is also post facto. I don't really understand what point you're trying to go for here. NC Court is allowed to rule after the fact, but the US Supreme Court is disallowed?

    Why not? First of all, the Supreme Court isn't really ruling on the court's interpretation vis a vis the NC state consitution, they're ruling on the court's authority vis a vis the Elections Clause, as I just specified. And second, I think the Supreme Court has every right to tell the NC court to "go fuck itself" even if I don't like it. Supporting one court's decision while recognizing the other court's capacity to overturn it isn't contradictory.
    I just don't allow yourself to decide the NC Supreme Court is telling the legislature to "go fuck itself," but the US Supreme Court isn't allowed to tell the NC Supreme Court to "go fuck itself." It's a matter of perspective, only.

    Can't? Nah. But after hearing for conservatives imply- if not outright insist- for the entire span of my political awareness that 'liberal' judges "legislate from the bench" whereas their own preferred judges somehow don't, I tend to consider those implications too stubbornly ingrained or ignorant to be worthy of more than a hand wave.
    I tend to think that judges returning the power of writing laws to legislatures isn't "legislat[ing] from the bench." They aren't writing new laws like the NC Supreme Court (kings of believing they can write laws if NC legislature does not in the manner they like). They're returning the power.

    Let's go with "I'm a few drinks in at this point" or "we've been back and forth for a while and it's a lot to keep track of." Either way would you mind being more direct?
    -As best as I can tell, you either don't think gerrymandering is a disenfranchisement of voters (which as I said earlier is simply definitional), you don't think it's a problem that needs to be solved, or perhaps you think the solutions would be worse than the problem?
    Gerrymandering doesn't make elections unfree in any judiciable manner. That is why the NC Supreme Court decided incorrectly.

    -As best as I can tell, you either think courts should respect established precedent, or refrain from ruling on issues not specified by the relevant constitution? I addressed both of those above.
    The precedents are bad for my stated reasons aforementioned. I don't blindly support precedent when past courts ignored constitutions to establish it (Plessy, Roe), nor desire overturning when good precedent stands. They overruled precedent for insane reasons, and exercised raw judicial power. That's contrary to a system of checks and balances.

    -I would like to hear your opinion of whether you consider gerrymandering to be in the spirit of "free and fair," apart from any precedent, existing law, or lack thereof. Separate it from this case. Opinion on gerrymandering in a vacuum.
    -Still want to know if you have a more realistic option to counter gerrymandering than "maybe if you just wish upon a star, and vote hard enough, the party intentionally weakened by gerrymandering will win out," but I already asked this above.
    It's better to leave things like district boundaries in the hands of legislatures. Any removal just puts biases in shadow without removing them. It's fundamentally a political process.

    This was me wondering what your limits are. It was intentionally the most extreme of the questions. It's probably unlikely that the SCOTUS would allow this, but I just wanted to gauge your opinion on the far end of the implications of this case.
    The electoral college, and the Senate for that matter, are complex topics also implicating power not directly proportional to massed population. I don't think their inclusion in a discussion about NC Court overreach actually helps anything. I don't believe justices can declare the Senate nor Electoral College unconstitutional on any "free elections" interpretation.
    "I wish it need not have happened in my time." "So do all who live to see such times. But that is not for them to decide. All we have to decide is what to do with the time that is given us."

  5. #125
    Pandaren Monk wunksta's Avatar
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    The Wisconsin Supreme Court has ruled that most ballot drop boxes aren't allowed in the state and that a voter can't have someone else return — in person — their completed absentee ballot on their behalf.
    https://www.npr.org/2022/07/08/11006...ity-assistance

  6. #126
    Quote Originally Posted by tehdang View Post
    The precise nature of those checks were and are in question. I happen to think long established precedent requires bigger explanations for why it's necessary to reverse. The case in question did not provide it.
    The bolded is entirely opinion on your part. You'll notice that the constitution...doesn't exactly prescribe the limits for how to interpret it, or provide grounds for departing from stare decisis. Sure: I'll agree that breaking with long established precedents should require a strong explanation, in the interest of stability and predictability, but ultimately, precedent (in a high court) is the practice of deciding not to stray too far from the opinions and interpretations that came before you. There is clearly value in having consistency and stability from the courts- however, in a functioning democracy, instability from the courts can also be a trigger for the legislative branch to do their job and provide clarity. Precedent changing sometimes is just part of how courts work, and since there isn't any objective measure of whether or not a precedent is valid, it's what happens afterwards that determines the legitimacy of the change in precedent. A court's only protection is the legitimacy of its rulings.

    Quote Originally Posted by tehdang View Post
    The text of the second amendment is available, as is the text of the Heller decision. It was pretty obviously drafted to protect an individual right to keep and bear arms, partly in service to the ability to call up a Militia, and preserve the security of a free State.
    The disconnection of the right to bear arms from the defense of a free state was unique to the Heller decision. It was a major change in precedent and 2nd amendment jurisprudence. "Self defense" in relation to bearing arms isn't enumerated in the Constitution, nor was it recognized by the court prior to Heller. Scalia still read it into the Constitution (and I don't even think Scalia was necessarily out of line in making this decision, even if I vehemently disagree with it).

    Quote Originally Posted by tehdang View Post
    First amendment jurisprudence is pretty close to the first amendment. I'd give that one a read too if you're unaware about modern questions of stuff like incitement and defamation and its relation to the first amendment.
    Gesturing vaguely in the direction of a stack of law books isn't answering the question. The first amendment itself doesn't clarify what counts or doesn't count as protected speech. Courts, for the entire history of the country, have had to consider the issue of what qualifies as protected speech and create guidelines based on factors and considerations not actually found within the constitutional text. You know? That thing you've been complaining about?

    Quote Originally Posted by tehdang View Post
    Legislatures are the primary course of action for the population.
    No shit? I've already made that clear.

    The context here is a discussion of one particular decision by a court, that I have supported. If we were talking about "how would I fix/improve this country," I would be talking almost exclusively about legislation and/or constitutional amendments. If we were talking about the current SCOTUS majority's apparent war against precedent, and I was bringing up all of the things I'd like Democrats to do to reign them in, you may well be trying to lecture me about checks and balances from the other side of the coin.

    Quote Originally Posted by tehdang View Post
    Reminder that that particular decision was made necessary by a different, idiodic Supreme Court decision. Namely, Plessy vs Ferguson.
    This is literally just opinion, though. Obviously, people today (myself included, of course) are of the overwhelming consensus that Plessy was one of the court's lowest moments, but that certainly wasn't the case at the time (duh). Given the nearly six decades between Plessy and Brown, It clearly took uhhh...a while...for Plessy to be perceived in the mainstream as errant law. And even when Brown was decided, whites- particularly in the South- made it absolutely clear that they didn't consider Plessy to be wrongly decided (if the Court had instead ruled in Plessy that separate was unequal, would we really have avoided the decades of segregation and Jim Crow laws that followed? Given the reaction to forced integration in Brown almost sixty years later, I rather doubt it).

    Also, it doesn't actually change the fact that the court's new precedent started ending segregation before Congress acted. That thing you claim not to like. Correction: you are fine with it when it's the right decision (according to you), and you don't like it when it's the wrong decision (again, according to you).

    Quote Originally Posted by tehdang View Post
    Don't confuse corrections to prior decisions, like Roe, with judicial adventurism, like Moore v. Harper.
    Please show me in the constitution where it clarifies the differences between these. "Correction to prior decision" refers to a legal consensus (or just an opinion), often developed well after the prior decision. What makes Plessy objectively wrong by the constitution and Brown objectively right? "Judicial adventurism?" That seems to generally just be "when conservatives don't like the decision," based on years of reading articles by and arguing with conservatives- but if I'm being charitable it's "interpretation well outside of the legal or political mainstream." But the legal consensus changes over time. Obviously it is grounded by necessity in the Constitution, precedent, and legal scholarship, but what is or isn't considered to be a "correct" interpretation isn't fixed. And is often disagreed on.

    Quote Originally Posted by tehdang View Post
    Same response as before. It's convenient how often you can overlap "we're disenfranchised by gerrymandering" and "not enough people agree with me, so I must go outside legislatures making laws to achieve my ends."
    There are Supreme Court justices that agree with me; part of the role of the courts is to protect the rights of the people. Sometimes the two wolves have to be told they don't get to eat the sheep for dinner. You and I just don't agree on what should or shouldn't be considered unconstitutional. As do legal scholars. As do judges. One person's "correction" is another's "overreach." EVERY time the SCOTUS makes a major decision, part of the punditry has a legal expert on to tell us why it was a fine and proper interpretation, and a victory for the rule of law, and another part of the punditry brings on a legal expert to tell us why it was the worst decision ever and a totally bad reading of the constitution (and these also tend to flip-flop based on the decision; I remember the absolute meltdown in conservative spaces when Gorsuch "betrayed" them and decided in favor of LGBT rights). And since most cases that get heard by high courts aren't pitches in the dirt or middle-middle fastballs, disagreement and lack of consensus is both reasonable and normal. Now if it does happen that the court makes an interpretation that is well out of the accepted mainstream- but this decision also happens to cause legislative bodies to be more representative of the population- that can be a good thing in the long run. A legislature that better reflects the wants and needs of its people can be more robust. It can clarify the law more readily. It can better check the other branches. They can even overrule the previous precedent by changing the law, if that's what people want.

    But again: people DO agree with me. The problem with getting legislative bodies to stop gerrymandering, broadly, isn't because people who don't like gerrymandering aren't voting, or whatever nonsense you have in mind- it's the web of perverse incentives inherent to legislative bodies and power accumulation that leads them to maintain the practice. If the SCOTUS (in a drastic change from their current direction) not only agreed with this case but outlawed gerrymandering, there would be partying in the streets. I think the future would undoubtedly legitimize the decision. And if the people didn't really want it? Well, Congress would be in a better position to address the people's wants, wouldn't they? How devastatingly awful...

    And it's not like we haven't been here before: major gains in rights have happened due to court precedent. Maybe you will stick with "Brown was a 'correction,'" and maybe you think Obergefell or Bostock were wrongly decided, but it is undeniable that these court cases expanded rights in this country by interpreting the Constitution in a way that it hadn't been before. But more relevant to this topic, let's talk about voting: specifically, the fact that the 'one person, one vote' standard and thus requirement for roughly equal district sizes was set by SCOTUS in Wesberry v. Sanders for the US Congress and Reynolds v. Sims for state legislative bodies. This was basically the most significant advance in representative democracy in the country's history apart from gains in suffrage. It was done unilaterally by the court, on the basis of an interpretation of the phrase "by the people" (in the case of Wesberry), and much to the displeasure of state legislatures- many of which had not redistricted in decades. And the dissent accused the majority of "amending the Constitution" (i.e "legislating from the bench.") Were these decisions wrong? Do you not think history has shown this to be a good thing for the country and for democracy?

    Also, please tell me Dobbs isn't "going outside the legislature to achieve ends." The GOP has been running on this as a policy goal for decades now. Trump (never one to say anything, even the quiet parts, quietly) was explicitly promising to appoint justices that would overturn Roe. What about Janus. Or Kennedy v. Bremerton, where the Court didn't just skewer the Establishment Clause, it ignored the actual facts of the case? Honestly, the irony of you bringing up "going outside the legislature to achieve my ends," given what SCOTUS has been up to recently...But go on: go ahead and tell me that these aren't explicit political goals being realized through the courts because well actually they were all just "corrections" according to "tehdang's objectively true understanding of the Constitution™," and that the clear alignment with GOP policy goals is just happenstance.

    Quote Originally Posted by tehdang View Post
    Legislatures refusing to do it is an answer. "No." Be a little more accepting of No and maybe I'd allow you too to be a defender of democracy.
    You think I can't take a "no?" My nearest political persuasion has been out of power since before I was born, dude. I have no problem losing a fair fight. I do have a problem losing a rigged game.

    Also, you seem to be a defender of process more than democracy.

    Quote Originally Posted by tehdang View Post
    If it's not against the constitution, as it obviously isn't in my view, choose the democratic option and campaign for a change in representatives.
    I mean, I actually do more than just argue on the internet...

    Quote Originally Posted by tehdang View Post
    I'm sorry if you feel strongly the fact of you not getting your way is reason enough to deserve court intervention.
    But I don't? There are many, many issues (frankly, pick nearly any issue) where I'm not "getting my way..." I've never suggested a court should raise the minimum wage, or guarantee healthcare, or reinstitute Glass-Steagall separation, or any of the other myriad changes I would like to see. It's really just on this issue, since it's rather foundational to our form of governance. And court intervention in defense of democratic values is a thing that already happens (as I detailed in Wesberry and Reynolds), so it's not like I'm even suggesting anything new. Also it's weird of you to be pinning this all on me and "my way"; maybe it helps you avoid the uncomfortable fact that it's actually a significant majority of people not getting their way? And that the primary method for said majority to have their grievances addressed is being actively stacked against them?

    Quote Originally Posted by tehdang View Post
    Umm ... the NC Supreme Court determined that they had the power to act based on an extremely radical reading of the constitution. The Supreme Court will rule if they actually didn't violate the US Constitution or NC state constitution.
    Again: the NC GOP's petition for stay and the dissent from Alito make it clear that the evaluation of constitutionality that they are challenging is based on the elections clause. NC GOP wants SCOTUS to create new interpretive guidelines for the elections clause. Alito also makes it clear that this isn't about North Carolina law either: North Carolina law has a process for judicially created maps if a legislative map is deemed unconstitutional. The NC GOP is asking for that entire process to be declared unconstitutional federally based on the elections clause of the Constitution. You can talk about the power of courts all you want, but is there really a reason to decrease the power of courts specifically for reviewing election laws? Really!? You can "expect a narrow ruling" all you want, and hopefully you'll even be proven right, but given the legal whiplash that the SCOTUS is currently subjecting this country to, I don't think it's unreasonable to discuss and/or worry about the very significant potential implications of this case. Implications that you have made every possible effort to ignore, I will add.

    The NC court's decision wasn't actually that radical, though, for reasons I'll get into later.

    Quote Originally Posted by tehdang View Post
    Oh, no, the bad people made plots that failed on multiple levels, at multiple times. I still don't accept your doomsday scenarios are reason to forgot the actual body that makes laws and empower the body that ought not to make laws in their absence.
    Yes the plots failed. But you know what the GOP is doing now? Excising most of representatives that followed the rules, or that think "hey maybe we should hold the plotters accountable." This does damage to democracy. Trump claiming that if he lost it was rigged in 2016 damages democracy. Trump claiming that 2020 was stolen damages democracy. A party that functionally can't admit that the other guy legitimately won does WAAAAY more damage to democracy than a court potentially stepping out of line to insist on fair democratic representation ever could. I mean, in a properly functioning democracy, a court that steps out of line will lose legitimacy and face the consequences. On the other hand, a significant portion of the population being conditioned to not to accept the validity of elections? That's a lot harder to fix. Democracy can still be lost by doing things "the proper way-" this is what we see around the world (and here), where democracy is in decline. People with pens are just as, if not more, capable than people with guns of hollowing out a democracy, unless the rights of people and democratic principles are fiercely protected.

    Quote Originally Posted by tehdang View Post
    You're still doggedly refusing to accept checks on courts, but demanding checks on legislatures. That isn't 'checks and balances.' That's "only the checks I wish to be imposed count as checks."
    I've brought up checks on courts many times. I know these posts are @Skroe sized, but are you even reading? All I've basically said is that a (high) court has broad interpretive power in its decision making: which is just simply a fact. The constitution doesn't exactly spell out the guidelines for judicial review, since judicial review itself is inferred rather than explicitly prescribed. There are all sorts of guidelines a judge can use- history, tradition, precedent, restraint, etc., but a high court's rulings are ultimately bound by their legitimacy, and the willingness and capacity of other branches to check them- not statute.

    Quote Originally Posted by tehdang View Post
    Interestingly enough, the state constitution doesn't change as the makeup of a court changes. That's why we're a nation of laws (or ought to be a nation of laws) not a nation of men (~a dozen justices wearing robes).
    Tell the current SCOTUS majority that about the federal Constitution. Or are you going to keep deflecting on this elephant? Oh! I know! How about you casually dismiss it with a "well the judges I agree with interpret it the right way, so it's fine?"

    Quote Originally Posted by tehdang View Post
    Courts power is limited by the constitutions by which they declare some laws unconstitutional. Knowing that judges are not immune to partisanship and ideology is a reason that their power is limited. That's why their particular partisanship is placed lower than the actual legislative actors in making laws. It's better to have many representatives arguing in a state congress (of differing types) than justices determining that their policies can be found in stretched readings of constitutional phrases.
    Yeah, clearly legislators are preferable. And I should add that in practice, making sure that court partisanship and ideology being beneath the legislature's depends a lot on legislatures doing their job. Ambition countering ambition and all that. The best constraints on a court's broad interpretive power are a robust legislature, and clarity in laws and constitutions.

    Quote Originally Posted by tehdang View Post
    It's a flawed system that nonetheless puts district boundaries within the remit of the voting process. The Democrats have focused their efforts in core constituencies localized in tiny geographical areas. Surpluses there do not equal ownership of the state by default.
    Ok, gonna put you down for "majority rule by urbanites is bad; rule by a rural minority is just fine." Also gotta ask some more: what's your opinion on SCOTUS deciding that districts should be equally sized?

    Quote Originally Posted by tehdang View Post
    They should expand their ideological bounds and recruit candidates to run in other areas of states, as Republicans did during Democratic gerrymanders of the 60s 70s 80s and early 90s. Once lost, you shouldn't despair upon gaining it again.
    Setting aside the way political coalitions have changed (and hardened) since then (often resulting in many of the same people/interest groups doing the gerrymandering), I would be remiss if I didn't bring up the way computer modeling has changed the gerrymandering game in recent years. Also "people overcame it then" may be true, but isn't really helpful, nor does the notion that it can be overcome make gerrymandering "fine" in my book. There was a generational shift happening through that time period which greatly aided the Republicans. I think the pendulum is going to swing back as Millennials and Gen Z come to dominate the political landscape more. I also think that Republicans agree with that assessment, which is why they are trying to preserve as much power as possible for their coalition now. I will also add that in swing states, a governor of the opposite party can check a legislature to help the people ensure fairer districting; however, North Carolina is one of only two states (with legislature-drawn districts) in which the governor has no role in the process.

    All that aside, the Democrats absolutely should seek to compete more in rural areas. If you go back several years, you'll find I have all sorts of opinions about the Dems' failures in this regard, but I won't go any more into that right here. But winning a majority still shouldn't take getting 60%.

    Quote Originally Posted by tehdang View Post
    The court decision in question was determined to be unjudiciable for more than 200 years, and as recently in a decision in 2015. Don't try to say it's been ignored for the last century.
    Not really true. Partisan gerrymandering has been determined to be judicable, federally, for basically my whole life. Following the 1962 Baker v. Carr decision that held redistricting to be judicable (and opening the door to the very important Wesberry v. Sanders and Reynolds v. Sims cases I mentioned above), SCOTUS made the decision that partisan gerrymandering was judicable and that a partisan gerrymander could be unconstitutional in Davis v. Bandemer (1986). The court could not agree, however (and struggled over several other cases regarding the issue), on a standard by which a partisan gerrymander could be held unconstitutional. Then as part of the current court majority's onslaught against precedent, they gave up trying, and Rucho overturned the judicability in federal courts, while still holding that an extreme partisan gerrymander could be a constitutional violation.

    And actually, this case at stake in Moore v. Harper isn't the first time a NC court has overturned a partisan gerrymander. Interestingly, after Davis v Bandemer, a court in North Carolina cited that case in Republican Party of North Carolina v. Martin (1992) when they overturned a partisan gerrymander of some judicial districts.

    So: partisan gerrymandering has been ruled on many times. The trouble has been setting a workable standard by which it can be deemed unconstitutional- but the idea that partisan gerrymandering is judicable and that a partisan gerrymander could be considered unconstitutional has been mainstream since at least the 80's. The judicability of redistricting has been a thing since the 60's. This isn't a radical idea, either in the general populace or in the legal world.

    Quote Originally Posted by tehdang View Post
    Judicial powers of review are constrained, and the constitution is not just a pretext for a creative writing assignment stretching any clause or phrase to mean what you don't like is also unconstitutional. The Supreme Court is primed to make a decision concerning that, and I'm happy to read the opinion, and concurrences, and dissents.
    Constrained by what exactly (and I don't mean from a "what should they" perspective, I mean from a "what can they" perspective)? Can you cite any laws that will overturn a SCOTUS decision that is too "creative?"

    Reminder, if we had a stronger legislature, providing more and clearer guidance, the broad power of judges to interpret would naturally find more constraints. Hey...maybe making sure the legislature better represents the people would make it stronger?

    Quote Originally Posted by tehdang View Post
    Again, I don't think you should have any power to redistribute power based on who you feel is more threatening to democratic order.
    That's not what I'm basing it on though? I'm saying power should be distributed in closer proportion to the way people vote. Some states will end up with more GOP representation. Some will end up with more Democratic representation. It's just that the GOP is the party currently attacking democratic norms and values with both their laws and rhetoric. I can assert that they are incredibly dangerous to democracy in this country while still maintaining that they get representation in proportion to their vote share.

    Quote Originally Posted by tehdang View Post
    The NC Court's decision is also post facto. I don't really understand what point you're trying to go for here. NC Court is allowed to rule after the fact, but the US Supreme Court is disallowed?
    No, my point is that the NC GOP has told SCOTUS the equivalent of "we want this person in jail, so why don't you 'figure out' what crime they committed." Because again: this case is clearly framed in the context of the elections clause, a thing which courts have not provided guidelines for- because the idea that judges (and executives) should have less than the usual level of checks and balances when it comes to election laws is utterly ridiculous, and the elections clause has never been interpreted to mean that- and now the GOP is asking them to interpret it that way.

    Quote Originally Posted by tehdang View Post
    I just don't allow yourself to decide the NC Supreme Court is telling the legislature to "go fuck itself," but the US Supreme Court isn't allowed to tell the NC Supreme Court to "go fuck itself." It's a matter of perspective, only.
    What? I literally said in the part that you quoted that SCOTUS absolutely has the right to overturn this if they see fit, even if I don't like it...I'm glad you've finally realized that these things are a matter of perspective, though.

    Quote Originally Posted by tehdang View Post
    I tend to think that judges returning the power of writing laws to legislatures isn't "legislat[ing] from the bench." They aren't writing new laws like the NC Supreme Court (kings of believing they can write laws if NC legislature does not in the manner they like). They're returning the power.
    The court sets standards and tests for determining constitutionality all the time, because...again...the constitution is quite short and vague. What is the practical difference between these tests/standards and laws? When the court interpreted the Equal Protection Clause provision to include (or not include) government services, district sizes, etc., was that "writing a law?" Court decisions that return power to legislatures aren't "writing laws," but if they return power to the people, it is? Is that how this works? I mean, Citizens United overruled a legislature and returned power to the people (at least the people wealthy enough to engage)...was that the court "writing a law?" Or is "writing a law" just code for "I disagree?" Because legion are the court dissents that accuse the majority of "writing a law," or something similar. When is a court overturning a legislature "writing a law," and when is not, and how is this distinction distinguishable from "well this is my interpretation?"

    Quote Originally Posted by tehdang View Post
    The precedents are bad for my stated reasons aforementioned. I don't blindly support precedent when past courts ignored constitutions to establish it (Plessy, Roe), nor desire overturning when good precedent stands. They overruled precedent for insane reasons, and exercised raw judicial power. That's contrary to a system of checks and balances.
    Ignored constitutions, in your opinion. In some cases, like Plessy, it becomes the prevailing legal opinion that they didn't accurately follow the constitution. But you could go back to just about any "wrongly" decided case, and clearly the justices in that particular majority didn't think they ignored the constitution. Because interpretations are assessed by a gradually shifting consensus based on various guidelines, groundings, and ideologies, rather than any immobile objective measure.

    And it's also...not contrary to a system of checks and balances? If the other branches refuse to or are unable to check them, that's really on them. As a matter of principle, restraint should be the baseline, but that's not what power tends to do. Restraint in a system of checks and balances isn't (just) a matter of internal integrity within a branch- it's the understanding that the other branches (and the people) will check them when they don't act with it. (Current example; the SCOTUS majority- Congressional ineptitude and deadlock means that they have basically zero reason at the moment to show restraint, other than worrying about the long-term effects on institutional legitimacy.)

    Quote Originally Posted by tehdang View Post
    It's better to leave things like district boundaries in the hands of legislatures. Any removal just puts biases in shadow without removing them. It's fundamentally a political process.
    1) Redistricting committees can't be done with a transparent process? They can't have legally mandated guidelines or algorithms that make the rules and intentions clear?
    2) You don't have to remove it from legislatures to alleviate the problem though. You could further specify guidelines for the requirements when it comes to drawing districts. You could add seats to a legislative body to be assigned proportionally by party vote, meaning the district lines wouldn't matter nearly as much (in terms of fair representation). Even just adding a lot more seats would make it harder to make such extreme gerrymanders.

    Quote Originally Posted by tehdang View Post
    I don't believe justices can declare the Senate nor Electoral College unconstitutional on any "free elections" interpretation.
    That's not what I was asking (and I think that ruling would be out-of-bounds too. It would take amending.) I was asking whether or not a state legislature, under an extreme interpretation of the elections clause, would have the right to rewrite the laws such that it (the legislature) would itself choose the slate of electors rather than the voters.
    Last edited by Gestopft; 2022-07-12 at 02:36 AM.
    "We must make our choice. We may have democracy, or we may have wealth concentrated in the hands of a few, but we can't have both."
    -Louis Brandeis

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    Quote Originally Posted by Gestopft View Post
    The bolded is entirely opinion on your part. You'll notice that the constitution...doesn't exactly prescribe the limits for how to interpret it, or provide grounds for departing from stare decisis. Sure: I'll agree that breaking with long established precedents should require a strong explanation, in the interest of stability and predictability, but ultimately, precedent (in a high court) is the practice of deciding not to stray too far from the opinions and interpretations that came before you.
    We've gone back and forth plenty on talking past each other. I do think your evaluation of this case betrays the fact that you fundamentally don't believe this about precedent. You'd have the Court find that gerrymandering makes elections unfree. The best NC has is that the legislature hasn't acted. Still not good enough.

    There is clearly value in having consistency and stability from the courts- however, in a functioning democracy, instability from the courts can also be a trigger for the legislative branch to do their job and provide clarity. Precedent changing sometimes is just part of how courts work, and since there isn't any objective measure of whether or not a precedent is valid, it's what happens afterwards that determines the legitimacy of the change in precedent. A court's only protection is the legitimacy of its rulings.
    I have another idea on "a trigger for the legislative branch to do their job." It's called letting the legislative branch write the laws, and not act like a second legislature when judges decide they don't like it. As I've said before, the legislature declining to act is the legislature saying No.

    The disconnection of the right to bear arms from the defense of a free state was unique to the Heller decision. It was a major change in precedent and 2nd amendment jurisprudence. "Self defense" in relation to bearing arms isn't enumerated in the Constitution, nor was it recognized by the court prior to Heller. Scalia still read it into the Constitution (and I don't even think Scalia was necessarily out of line in making this decision, even if I vehemently disagree with it).
    Scalia's reasoning is plain second amendment, and simple. He didn't write into the text, he examined the history of its writing and wrote at length. Heller says what the second amendment says, and that is literally the crux of my problem with what you're trying to say. The Antifederalists feared that Congress would abolish the right to keep and bear arms, and federalists responded by denying Congress the right to impair it. That's the clause, not trying to make hundreds of years of free elections unfree because you decide you don't like gerrymandering. The legal reasoning is very clear from the text.

    Gesturing vaguely in the direction of a stack of law books isn't answering the question. The first amendment itself doesn't clarify what counts or doesn't count as protected speech. Courts, for the entire history of the country, have had to consider the issue of what qualifies as protected speech and create guidelines based on factors and considerations not actually found within the constitutional text. You know? That thing you've been complaining about?
    Now you're gesturing vaguely about details of protected speech. The Court has taken first amendment protections to very intricate areas, to expound on the principle of the law. Those are details to how first amendment protections apply to speech, and when those protections may be restricted. Not inventing new phrases in the first amendment to protect some speech and not others. This is the proper role of the court: clear constitutional authority, applied at an intricate level of detail. This is very different from the case you're futilely trying to apply it to.

    No shit? I've already made that clear.
    You spend a lot of time hand-wringing about legislatures, but when it comes down to the case at hand, you think their role can be sidestepped for no better reason than doing something "in a manner I consider egregious." There is no policy difference exception to legislatures writing laws. I think this profoundly disrespects democracy.

    The context here is a discussion of one particular decision by a court, that I have supported. If we were talking about "how would I fix/improve this country," I would be talking almost exclusively about legislation and/or constitutional amendments. If we were talking about the current SCOTUS majority's apparent war against precedent, and I was bringing up all of the things I'd like Democrats to do to reign them in, you may well be trying to lecture me about checks and balances from the other side of the coin.
    There isn't a real check on Courts if the legislature cannot write amendments into the constitution that the Courts may not interpret to grant them broad power to do anything they see fit. Let me restate this once again: If you think legislature refusing to act in a manner you deem appropriate is means for the Court to get involved, then the constitution is just a pretext for you, and you do indeed consider the Court to be a second legislature. It's wholly divorced from the law.

    This is literally just opinion, though. Obviously, people today (myself included, of course) are of the overwhelming consensus that Plessy was one of the court's lowest moments, but that certainly wasn't the case at the time (duh). Given the nearly six decades between Plessy and Brown, It clearly took uhhh...a while...for Plessy to be perceived in the mainstream as errant law. And even when Brown was decided, whites- particularly in the South- made it absolutely clear that they didn't consider Plessy to be wrongly decided (if the Court had instead ruled in Plessy that separate was unequal, would we really have avoided the decades of segregation and Jim Crow laws that followed? Given the reaction to forced integration in Brown almost sixty years later, I rather doubt it).

    Also, it doesn't actually change the fact that the court's new precedent started ending segregation before Congress acted. That thing you claim not to like. Correction: you are fine with it when it's the right decision (according to you), and you don't like it when it's the wrong decision (again, according to you).
    You're going to have to consider the difference between a Court overruling a different Court's interpretation of law, and a Court deciding it has newfound powers contradicting its entire history as applies to legislatures. You cited Brown, now remember that Brown was made most necessary by another court decision, and not just legislators making laws. The Amendment in this case, the 13th, was passed and ought to have applied, but the Plessy Court, like this NC Court, decided amendments were no real check on its power to interpret.

    Please show me in the constitution where it clarifies the differences between these. "Correction to prior decision" refers to a legal consensus (or just an opinion), often developed well after the prior decision. What makes Plessy objectively wrong by the constitution and Brown objectively right? "Judicial adventurism?" That seems to generally just be "when conservatives don't like the decision," based on years of reading articles by and arguing with conservatives- but if I'm being charitable it's "interpretation well outside of the legal or political mainstream." But the legal consensus changes over time. Obviously it is grounded by necessity in the Constitution, precedent, and legal scholarship, but what is or isn't considered to be a "correct" interpretation isn't fixed. And is often disagreed on.
    Please consider "interpretation" as a subject to itself. Interpreting the constitution to give me the power to declare long-established laws unconstitutional, with no change to the constitution mind you, is very different than two courts deciding a first amendment case (say, corporate speech or public prayer) hinges slightly one way or another. The first is making judges the crafters of creative writing assignments: no real need to overly reference the law itself, just cite policy outcomes you think are hindered or helped. The second is applying the text of laws and competing laws to borderline situations. I see you're quite unwilling to make any box around unconstitutional exercise of raw judicial power that isn't big enough to include any decisions that can approximately be called interpretation of the law. I think you've read enough of my posts to know I consider the difference very fundamental. Defamation, corporate speech, prayer, etc may be protected as the furthest limit of the constitution, or the first step beyond its protections and into competing interests. That's very different than stuff like Moore.

    There are Supreme Court justices that agree with me; part of the role of the courts is to protect the rights of the people. Sometimes the two wolves have to be told they don't get to eat the sheep for dinner. You and I just don't agree on what should or shouldn't be considered unconstitutional. As do legal scholars. As do judges. One person's "correction" is another's "overreach." EVERY time the SCOTUS makes a major decision, part of the punditry has a legal expert on to tell us why it was a fine and proper interpretation, and a victory for the rule of law, and another part of the punditry brings on a legal expert to tell us why it was the worst decision ever and a totally bad reading of the constitution (and these also tend to flip-flop based on the decision; I remember the absolute meltdown in conservative spaces when Gorsuch "betrayed" them and decided in favor of LGBT rights). And since most cases that get heard by high courts aren't pitches in the dirt or middle-middle fastballs, disagreement and lack of consensus is both reasonable and normal. Now if it does happen that the court makes an interpretation that is well out of the accepted mainstream- but this decision also happens to cause legislative bodies to be more representative of the population- that can be a good thing in the long run. A legislature that better reflects the wants and needs of its people can be more robust. It can clarify the law more readily. It can better check the other branches. They can even overrule the previous precedent by changing the law, if that's what people want.
    I don't mean to imply that you're alone in thinking the way you do. I've heard others justify this as you do: the end (no gerrymandering) justifies the means (inventing a constitutional prohibition on gerrymandering, when none exists). You've brought in what you want to be true of Democracy, and what you consider egregious, and bad motivations of legislatures, but such things are the reason to persuade and pass laws, not abandon that and place your faith in justices. They make no better Democracy if they function as super-legislatures for when the ideological allies of Gestopf don't get what they want in a timeframe they feel appropriate.

    I happen to side with the Thomas, Alito, and Gorsuch, and that does put me squarely of the opinion that some Supreme Court justices, legal scholars, and you are profoundly mistaken on how to interpret constitutions, and frankly no friend to democracy, all things considered. The nation just can't stand on constitutions, when written, that are eventually found to overrule a host of other laws once thought to coexist. There's also no good in overruling past constitutions with amendments, if they too can be eventually found to mean something profoundly different.

    But again: people DO agree with me.
    I never sought to declare your opinion marginal. I don't think you're trying to do it either, really.

    The problem with getting legislative bodies to stop gerrymandering, broadly, isn't because people who don't like gerrymandering aren't voting, or whatever nonsense you have in mind- it's the web of perverse incentives inherent to legislative bodies and power accumulation that leads them to maintain the practice. If the SCOTUS (in a drastic change from their current direction) not only agreed with this case but outlawed gerrymandering, there would be partying in the streets. I think the future would undoubtedly legitimize the decision. And if the people didn't really want it? Well, Congress would be in a better position to address the people's wants, wouldn't they? How devastatingly awful...
    People that agree with you would party, people that agree with me would mourn. What use are laws, nay the constitution, that put the drawing of districts directly in the legislative process, if certain men are above laws? I do think time would show that the best route is to cite the states with different schemes in their laws and constitutions for apportioning the vote, and selling that as an actual improvement over Democrats gerrymandering their current states, and Republicans the same. And, once you've seen a victory for your own side in this, what's to stop future courts overruling the decision by calling it not grounded in anything related to actual law?

    And it's not like we haven't been here before: major gains in rights have happened due to court precedent.
    Major changes in rights might also be accomplished by vigilante bands, or selective prosecution, or literal armed revolt against the current government. I don't deny historical examples of any of those. But like the current events surrounding the reversal of Roe, the power to declare certain things rights is a very dangerous power indeed. Like you said before, people could be absolutely celebrating in the street while others mourn. The justices that granted it by fiat, just as well can take them away by the same. I favor a judicial branch that looks to the text and history of constitution and laws, rather than those that claim they can identify injustice and decide they're ready to right it themselves.

    Also, please tell me Dobbs isn't "going outside the legislature to achieve ends." The GOP has been running on this as a policy goal for decades now. Trump (never one to say anything, even the quiet parts, quietly) was explicitly promising to appoint justices that would overturn Roe.
    No, Roe was going outside the legislature to achieve ends. It robbed the United States the ability to debate restrictions on the practice of abortion, and made even European standards of restriction illegal. Yes, we're absolutely going to disagree on Roe vs Casey vs Dobbs. If this really relies on what I think about Janus, Kennedy, and others, I'm happy to go into it. But it seems that your main gripe is that the Constitution had a lot to say about trimesters, and several men in the 70s miraculously discovered it.

    You think I can't take a "no?" My nearest political persuasion has been out of power since before I was born, dude. I have no problem losing a fair fight. I do have a problem losing a rigged game.

    Also, you seem to be a defender of process more than democracy.
    You've equated legislatures refusing to act as an invitation for courts to act. Structural limits on power is an absolute core value for the preservation of democracy. If laws say whatever the current slate of judges want it to say, then you've got worse problems than just the originalist or textualist judges. You've got to worry about judges that do think in terms of policy outcomes, and think you're 180 degrees opposite in your policies.

    My nearest political persuasion hasn't had a legislative house in my state since well before I was born. You're not unique in that. I haven't come to the same conclusions as you, nevertheless.

    But I don't? There are many, many issues (frankly, pick nearly any issue) where I'm not "getting my way..." I've never suggested a court should raise the minimum wage, or guarantee healthcare, or reinstitute Glass-Steagall separation, or any of the other myriad changes I would like to see. It's really just on this issue, since it's rather foundational to our form of governance. And court intervention in defense of democratic values is a thing that already happens (as I detailed in Wesberry and Reynolds), so it's not like I'm even suggesting anything new. Also it's weird of you to be pinning this all on me and "my way"; maybe it helps you avoid the uncomfortable fact that it's actually a significant majority of people not getting their way? And that the primary method for said majority to have their grievances addressed is being actively stacked against them?
    I have my doubts if you really, truly, have qualms about courts deciding something about freedom means the minimum wage must be increased. Gerrymandering makes elections unfree, and a too-low minimum wage makes workers unfree. You might conceive of some stake to thrust in the ground, declaring "This far and no further," but I see a continuous slope downward.

    But it is helpful to hear you presume some limits on what a "court should raise" (Note: this is your opinion, just as I have mine). I think they're foolhardy, not rooted in anything meaningful, but at least you state they exist.

    Again: the NC GOP's petition for stay and the dissent from Alito make it clear that the evaluation of constitutionality that they are challenging is based on the elections clause. NC GOP wants SCOTUS to create new interpretive guidelines for the elections clause. Alito also makes it clear that this isn't about North Carolina law either: North Carolina law has a process for judicially created maps if a legislative map is deemed unconstitutional. The NC GOP is asking for that entire process to be declared unconstitutional federally based on the elections clause of the Constitution. You can talk about the power of courts all you want, but is there really a reason to decrease the power of courts specifically for reviewing election laws? Really!? You can "expect a narrow ruling" all you want, and hopefully you'll even be proven right, but given the legal whiplash that the SCOTUS is currently subjecting this country to, I don't think it's unreasonable to discuss and/or worry about the very significant potential implications of this case. Implications that you have made every possible effort to ignore, I will add.

    The NC court's decision wasn't actually that radical, though, for reasons I'll get into later.
    Elections clause, as a useful reminder that Courts aren't fully independent of legislatures, and that the Court's reasoning in inventing this new jurisprudence were "explanations [that] have the hallmarks of legislation." They couldn't even justify reversing the 2015 decision (roughly, wtf do you mean the state constitution prohibits gerrymandering, plaintiffs?), without relying on that law-writing language. Hence, it would be more true to say they believed the elections clause to say "Times, Places, and Manner of holding elections ... must be prescribed by the Legislature thereof, in consultation and agreement with the judicial branch of that state."

    Yes the plots failed. But you know what the GOP is doing now? Excising most of representatives that followed the rules, or that think "hey maybe we should hold the plotters accountable." This does damage to democracy. Trump claiming that if he lost it was rigged in 2016 damages democracy. Trump claiming that 2020 was stolen damages democracy. A party that functionally can't admit that the other guy legitimately won does WAAAAY more damage to democracy than a court potentially stepping out of line to insist on fair democratic representation ever could. I mean, in a properly functioning democracy, a court that steps out of line will lose legitimacy and face the consequences. On the other hand, a significant portion of the population being conditioned to not to accept the validity of elections? That's a lot harder to fix. Democracy can still be lost by doing things "the proper way-" this is what we see around the world (and here), where democracy is in decline. People with pens are just as, if not more, capable than people with guns of hollowing out a democracy, unless the rights of people and democratic principles are fiercely protected.
    Not everything that does damage to democracy requires judicial overreach to correct. Justices, including those appointed by Trump, stopped his attempts to lawsuit his way to victory. I think your approach would erode democracy further by empowering justices to do more reading into the constitution to prescribe additional meaning into its broad statements. I think you're talking the fast track to the erosion of judicial legitimacy, and in public faith in checks and balances within their government.

    I've brought up checks on courts many times. I know these posts are @Skroe sized, but are you even reading? All I've basically said is that a (high) court has broad interpretive power in its decision making: which is just simply a fact. The constitution doesn't exactly spell out the guidelines for judicial review, since judicial review itself is inferred rather than explicitly prescribed. There are all sorts of guidelines a judge can use- history, tradition, precedent, restraint, etc., but a high court's rulings are ultimately bound by their legitimacy, and the willingness and capacity of other branches to check them- not statute.
    I'll leave it to what I said earlier: I think your lack of restraint on judges over legislatures constitutes a real lack of belief in checks and balances as they ought to really exist. I'll repeat back to you the same, that you've read what I've wrote and should know why I think that's the case, even if you don't accept my reasoning. I don't mean to say you've abandoned any argument that you believe in checks and balances, but they're still preserved in your schema for court intervention.

    Tell the current SCOTUS majority that about the federal Constitution. Or are you going to keep deflecting on this elephant? Oh! I know! How about you casually dismiss it with a "well the judges I agree with interpret it the right way, so it's fine?"
    They've been busy telling legislatures to write laws! Dobbs decision says write a law! EPA says write a law! Checks and balances are back baby, and some people don't like the lawgiving power slowly returning to its proper branch.

    Yeah, clearly legislators are preferable. And I should add that in practice, making sure that court partisanship and ideology being beneath the legislature's depends a lot on legislatures doing their job. Ambition countering ambition and all that. The best constraints on a court's broad interpretive power are a robust legislature, and clarity in laws and constitutions.
    I think we've trodden this ground plenty.

    Ok, gonna put you down for "majority rule by urbanites is bad; rule by a rural minority is just fine." Also gotta ask some more: what's your opinion on SCOTUS deciding that districts should be equally sized?
    You'll have to go back to the chain of that particular quote. The legislatures decided to write the district boundaries as they did, which is their right. You seem to be of the opinion that removing it from the legislature is the solution.

    In the case of decisions like Reynolds vs. Sims, I think Harlan II's dissent should be read as lining up to my own qualms on what the court found. It also prevented state laws and a change in the federal constitution that might've done the same.

    Setting aside the way political coalitions have changed (and hardened) since then (often resulting in many of the same people/interest groups doing the gerrymandering), I would be remiss if I didn't bring up the way computer modeling has changed the gerrymandering game in recent years. Also "people overcame it then" may be true, but isn't really helpful, nor does the notion that it can be overcome make gerrymandering "fine" in my book. There was a generational shift happening through that time period which greatly aided the Republicans. I think the pendulum is going to swing back as Millennials and Gen Z come to dominate the political landscape more. I also think that Republicans agree with that assessment, which is why they are trying to preserve as much power as possible for their coalition now. I will also add that in swing states, a governor of the opposite party can check a legislature to help the people ensure fairer districting; however, North Carolina is one of only two states (with legislature-drawn districts) in which the governor has no role in the process.
    Computer modeling might be a great argument to change laws. I don't think it is a good argument to have judges write laws instead. I don't rule out any kind of grand compromise between the two parties in writing laws that lessen the worst examples of gerrymandering.

    All that aside, the Democrats absolutely should seek to compete more in rural areas. If you go back several years, you'll find I have all sorts of opinions about the Dems' failures in this regard, but I won't go any more into that right here. But winning a majority still shouldn't take getting 60%.
    Good fodder for getting candidates campaigning on that very topic, without the raw cynicism that Republicans like it in states they run, and Democrats like it in states they run, so nothing must change from here until the country ceases to exist.

    Not really true. Partisan gerrymandering has been determined to be judicable, federally, for basically my whole life. Following the 1962 Baker v. Carr decision that held redistricting to be judicable (and opening the door to the very important Wesberry v. Sanders and Reynolds v. Sims cases I mentioned above), SCOTUS made the decision that partisan gerrymandering was judicable and that a partisan gerrymander could be unconstitutional in Davis v. Bandemer (1986). The court could not agree, however (and struggled over several other cases regarding the issue), on a standard by which a partisan gerrymander could be held unconstitutional. Then as part of the current court majority's onslaught against precedent, they gave up trying, and Rucho overturned the judicability in federal courts, while still holding that an extreme partisan gerrymander could be a constitutional violation.

    And actually, this case at stake in Moore v. Harper isn't the first time a NC court has overturned a partisan gerrymander. Interestingly, after Davis v Bandemer, a court in North Carolina cited that case in Republican Party of North Carolina v. Martin (1992) when they overturned a partisan gerrymander of some judicial districts.

    So: partisan gerrymandering has been ruled on many times. The trouble has been setting a workable standard by which it can be deemed unconstitutional- but the idea that partisan gerrymandering is judicable and that a partisan gerrymander could be considered unconstitutional has been mainstream since at least the 80's. The judicability of redistricting has been a thing since the 60's. This isn't a radical idea, either in the general populace or in the legal world.
    This case rooted its powers in the state constitution, not federally, and the justices made it clear that they considered it their right to decide the meaning of "free elections" (inter alia) all over their decision (State level was Harper vs Hall). "Our dissenting colleagues have overlooked the fundamental reality of this case. Rather than stepping outside of our role as judicial officers and into the policymaking realm ..." and on and on. It needs an answer from the NC State Constitution, because the judges did not rely on federal jurisprudence like you cited. I think a careful reading of the majority in Moore shows they desire the powers and role of the legislature, despite their foolish attempts to claim otherwise (and sometimes in the other half of the same sentence!)

    I don't want to go too lengthy on the very long federal record on racial gerrymandering and partisan gerrymandering and the intrusive Warren court through to Rehnquist and beyond. Equal protection clause. A plaintiff alleging Davis v. Bandemer was overruled in PA's lower decision, and getting Vieth v. Jubelirer as a result. Rucho v Common Cause's "Partisan gerrymandering claims present political questions beyond the reach of the federal courts" and even Shapiro vs McManus. Maybe we'll get a hot federal case to really dive deep into the opinions and case law.

    I'll set aside judicial districts, since the court points to a state agency making local justice primaries be held within district, judges are nominated within that district, but the election is fully statewide. The districts alleged to be unconstitutional under the NC state constitution are not state-wide elections with oddly small nominating votes.

    Constrained by what exactly (and I don't mean from a "what should they" perspective, I mean from a "what can they" perspective)? Can you cite any laws that will overturn a SCOTUS decision that is too "creative?"
    I hope future generations will see the mess that courts have made of constitutional jurisprudence and pass additional amendments reigning in their power, simply based on their unwillingness to follow any textual constraints on power in general. Until then, originalist justices should be nominated and confirmed to limit the overreach of what I call creative writing assignments instead of opinions.

    Reminder, if we had a stronger legislature, providing more and clearer guidance, the broad power of judges to interpret would naturally find more constraints. Hey...maybe making sure the legislature better represents the people would make it stronger?
    Nonsense. They've shown the ability to wrest power just based on the legislature not writing anything specific on the subject. You literally couldn't write enough laws to stop activist judges from writing their own ones going beyond them.

    That's not what I'm basing it on though? I'm saying power should be distributed in closer proportion to the way people vote. Some states will end up with more GOP representation. Some will end up with more Democratic representation. It's just that the GOP is the party currently attacking democratic norms and values with both their laws and rhetoric. I can assert that they are incredibly dangerous to democracy in this country while still maintaining that they get representation in proportion to their vote share.
    You brought up the matter of "defend democracy from the GOP." If that had no basis in what you say the courts need to do, then I wonder why you wrote it.

    No, my point is that the NC GOP has told SCOTUS the equivalent of "we want this person in jail, so why don't you 'figure out' what crime they committed."
    No no no. Not even close. The NC GOP just has to point at the text of the Harper vs Hall decision, and say "Do you see this shit?" I'm very much opposed to your take on the controversy. They've got a damn great argument to make on this, regardless of the final SCOTUS decision.

    Because again: this case is clearly framed in the context of the elections clause, a thing which courts have not provided guidelines for- because the idea that judges (and executives) should have less than the usual level of checks and balances when it comes to election laws is utterly ridiculous, and the elections clause has never been interpreted to mean that- and now the GOP is asking them to interpret it that way.
    I promise I won't repeat myself much more on this sticking point, since you clearly reject it in its entirety. I don't have any pretension that somebody reads an internet forum post and totally reevaluates their thoughts on constitutional separation of powers. The elections clause is a statement regarding checks and balances; namely that the legislatures specifically exercise a degree of independence in setting election rules. If no part of election rulemaking is denied to Courts by the constitution in that passage, then the Court denies the legislature its check. If the Court can overrule portions of governance expressly laid to a different branch, then it's not operating according to any checks and balance system whatsoever.

    Secondly, and importantly, the case hinges on whether the NC State Constitution is broad enough to grant the Court this power. I say the majority decision makes laughable reference to portions of the constitution they say grant it, and they do a good job "filling in the details" with basic claims to legislating powers and empowerment when legislatures fail to act (as they see fit). But we've been over this before and maybe it's time to give that sticking point a rest too. The dissent at the state level, Harper vs Hall, and the dissent from original cert in Moore vs Harper, goes very far in arguing the point from the direction I come at it from.

    What? I literally said in the part that you quoted that SCOTUS absolutely has the right to overturn this if they see fit, even if I don't like it...I'm glad you've finally realized that these things are a matter of perspective, though.
    Judging from your previous and later quotes involving what is just my "opinion," I'm not so sure about the matter of perspective point. Contrary opinions on what powers are granted by the constitution, or reserved to certain parties by the constitution, are still contrary opinions after all.

    The court sets standards and tests for determining constitutionality all the time, because...again...the constitution is quite short and vague. What is the practical difference between these tests/standards and laws? When the court interpreted the Equal Protection Clause provision to include (or not include) government services, district sizes, etc., was that "writing a law?" Court decisions that return power to legislatures aren't "writing laws," but if they return power to the people, it is? Is that how this works? I mean, Citizens United overruled a legislature and returned power to the people (at least the people wealthy enough to engage)...was that the court "writing a law?" Or is "writing a law" just code for "I disagree?" Because legion are the court dissents that accuse the majority of "writing a law," or something similar. When is a court overturning a legislature "writing a law," and when is not, and how is this distinction distinguishable from "well this is my interpretation?"
    You're all over the place here. Legislatures for their own part can engage tyrannically against the population in violation of First and Second amendment protections. The fact that sometimes the Court does the same thing with its power over a legislature doesn't make the former example moot. Separation of powers respects the fact that any branch may exercise extra-constitutional powers, and hopes to pit enough of them against each other to cause some restraint. I also respect that we'll disagree on the limits of the Equal Protection Clause or the Commerce Clause or Due Process Clause ... if only edge cases might be a wee bit separated from egregious ones. I've failed to convince you that this one exists as such.

    Ignored constitutions, in your opinion. In some cases, like Plessy, it becomes the prevailing legal opinion that they didn't accurately follow the constitution. But you could go back to just about any "wrongly" decided case, and clearly the justices in that particular majority didn't think they ignored the constitution. Because interpretations are assessed by a gradually shifting consensus based on various guidelines, groundings, and ideologies, rather than any immobile objective measure.
    I'm raising my eyebrows considerably on your "assessed by a gradually shifting consensus based on various guidelines, groundings, and ideologies, rather than any immobile objective measures." These involve sharply divided issues where no legal consensus is a useful guide on getting the outcome right. Or maybe you'd prefer to exclude members of the Federalist society from weighing in on those interpretations?

    At least you've admitted one thing. The Court is not immune from perpetuating injustice through time, even as you think it can usefully interpose here from stopping legislative injustice through time. I think you're doing too much sophistry calling it "gradually shifting consensus," when it's better thought of as "dramatically argued cases, changing courts, rising and falling judicial theories, appointments and controversies." Y

    You have some ideas of rights that are being violated, but corrected, by Courts, and they seem a little immovable to you, at least as I see them. Voting rights, as you construe them, and gerrymandering isn't new. Please see also, that others have less movable targets on interpreting constitutions and separation of powers. Bright lines, in fact. Where maybe in existing common law can find some existence of unenumerated rights deserving judicial defense, those aren't always typical of all jurisprudence. The constitution isn't just made for lawyers to tell citizens which rights they are guaranteed, and which can be safely discarded without a word from their elected legislatures. But, I want to respect your opinion here. You clearly think the justice system as exists is too shifting to really admit to this particular citizen's "this example goes too far" (with the same immovable way you feel about voting rights). You've denied it again and again enough times for me to drop it.

    And it's also...not contrary to a system of checks and balances? If the other branches refuse to or are unable to check them, that's really on them. As a matter of principle, restraint should be the baseline, but that's not what power tends to do. Restraint in a system of checks and balances isn't (just) a matter of internal integrity within a branch- it's the understanding that the other branches (and the people) will check them when they don't act with it. (Current example; the SCOTUS majority- Congressional ineptitude and deadlock means that they have basically zero reason at the moment to show restraint, other than worrying about the long-term effects on institutional legitimacy.)
    I think we've been back and forth on this one enough to end it.

    1) Redistricting committees can't be done with a transparent process? They can't have legally mandated guidelines or algorithms that make the rules and intentions clear?
    2) You don't have to remove it from legislatures to alleviate the problem though. You could further specify guidelines for the requirements when it comes to drawing districts. You could add seats to a legislative body to be assigned proportionally by party vote, meaning the district lines wouldn't matter nearly as much (in terms of fair representation). Even just adding a lot more seats would make it harder to make such extreme gerrymanders.
    I've seen the current attempts at removing political representation from the drawing of maps. I haven't really seen much improvement to be celebrated. The biases are just hidden a bit better. I think the best parts of reform may be upper bounds on compactness (lack of compactness).

    Distinct areas have differing interests not expressly proportional to the population involved. I'm not opposed to other states wanting ranked choice or proportional assignment, but I'd argue against it in any state I'm a resident of.

    That's not what I was asking (and I think that ruling would be out-of-bounds too. It would take amending.) I was asking whether or not a state legislature, under an extreme interpretation of the elections clause, would have the right to rewrite the laws such that it (the legislature) would itself choose the slate of electors rather than the voters.
    Same response. I think the electoral college is a different enough subject in the constitution to not merit inclusion in state district drawing. It's an Article 1 vs Article 2 set of constitutional law. We're already waist deep in Article 1, NC State Constitution, and separation of powers/checks and balances, perhaps even to the point of resting the discussion here, with any readers capable of looking back at all the responses.
    Last edited by tehdang; 2022-07-12 at 06:35 AM.
    "I wish it need not have happened in my time." "So do all who live to see such times. But that is not for them to decide. All we have to decide is what to do with the time that is given us."

  8. #128
    Void Lord Elegiac's Avatar
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    I see tehdang is still desperately trying to convince people that the current SCOTUS is actually acting out of good faith jurisprudence and not pushing a reactionary agenda on nonsense legal bases. Rofl.
    The Were/Was Army: "Nooo you can't just vaporize my entire armored division, we had such a manly recruitment ad!"
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  9. #129
    Quote Originally Posted by Elegiac View Post
    I see tehdang is still desperately trying to convince people that the current SCOTUS is actually acting out of good faith jurisprudence and not pushing a reactionary agenda on nonsense legal bases. Rofl.
    SCOTUS is a joke. They had what one liberal court with the Warren court and suddenly it's the worst thing in the world.

    Lets not pretend here that outside of the Warren Court's rulings; The SCOTUS is arguably the worst ref for the people under the sun. This is the same court that ruled on Plessy vs Furgeson, Koramatsu, and Dredd Scott.

    The SCOTUS isn't a reflection of the people. Quite the opposite it's designed to harm the people and only support the document which was crafted with Slaveholder's rights in minds over the rights of people who lived in urban centers.

    If you live in the US and you're in a city, you might as well start thinking of moving to a better country because the USA is arguably the most anti-city country under the sun.

    It's a government for the rural populations, by the rural populations, to service the rural populations.

  10. #130
    Quote Originally Posted by CastletonSnob View Post
    Just think: We wouldn't be in the situation we are now if Hillary had campaigned harder in the Rust Belt.

    Hillary wasn't a great candidate, but she was INFINITELY better than Trump.
    That was stupidly obvious to see and it's the voter's fault for not informing themselves (aka opening their eyes at all even once?) enough to prevent such a moronic monster to enter the oval office.

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