Anyone who asks a question such as "In a perfect world, shouldn’t we avoid drawing districts with race in mind?" and anyone who characterizes such a question as "fair" should consider how Frederick Douglass might answer or address such a question or characterization if he were here to do so.
A discussion of the propriety (or impropriety) of celebrating Juneteenth brought to my attention a speech by Douglass denouncing emancipation as "a stupendous fraud" after he had visited South Carolina and Georgia. See https://www.historyisaweapon.com/defcon1/douglassfraud.html.
Douglass made clear that he would be extremely disappointed to discover that so many people advocate celebrating mere emancipation. He was even more clear and emphatic about how disappointed he would be to learn that even well-intentioned people even today presume or pretend that discussion should revolve around the existence of an imaginary "perfect world."
Hi Adam. Did you read Douglass's speech? Is there any reason at all to think that the Voting Rights Act was enacted when Americans lived in a perfect world? Did Jim Crow laws and Plessy v. Ferguson sound like a perfect world?
Yes, I’ve read the speech! I’m just not sure how your comment is responding to the thrust of my post. My post is in support of race conscious districting.
If I were responding to the thrust of your post, I'd take issue with your assertion that "Democracy depends on the premise that voters have agency." That assertion reminds me of the characterization of democracy as "bottom up." Both such assertions stand the truth on its head. The people are at the top as the sovereign, and our public servants are merely our representatives, our agents, for purposes of fulfilling their oaths to support and defend our Constitution.
Both the assertions above (about agency and about democracy being "bottom up") ignore the meaning of the word "democracy" and the meaning of the American Revolution. Revolution is related to the word "revolve" not the word "revolt." The revolution was an overturning of old-world notions of power that previously placed the people at the bottom as mere subjects of people with power. The Revolution put the people at the top. Most obviously, that's why our Constitution starts with the words "We the People of the United States." As Justice James Wilson emphasized explicitly in Chisholm v. Georgia in 1793, those words and their placement implicitly "introduced" the "sovereign" in the U.S. Clearly, our Constitution established and emphasized that the people are not at the bottom politically and they don't have mere agency.
The problem with partisan gerrymandering (besides obviously unconstitutionally discriminating against some people based on their expressed political viewpoint and discriminating against other people because of their association with such people) is that it treats voters as subjects instead of as sovereigns. Treating certain people as "protected" does much the same thing.
Irrefutably and clearly, “the Constitution begins with the principle that sovereignty rests with the people” inasmuch as “the people” did “ordain and establish the Constitution.” Alden v. Maine, 527 U.S. 706, 759 (1999). This was “an assertion that sovereignty belongs” to “the whole of the people.” Gundy v. United States, 588 U.S. 128, 152 (2019) (Gorsuch, Thomas JJ., Roberts, C.J., dissenting).
“In our system of government, ultimate sovereignty rests with the people, and the people have the right to control their own destiny.” Obergefell v. Hodges, 576 U.S. 644, 741 (2015) (Alito, Scalia, Thomas, JJ., dissenting). “[T]he critical postulate” of our Constitution is “that sovereignty is vested in the people.” United States Term Limits v. Thornton, 514 U.S. 779, 794 (1995). “[T]he animating principle of our Constitution” was “that the people” are sovereign and the “source of all the powers of government.” Arizona State Legis. v. Arizona Independent Redistricting Comm’n, 576 U.S. 787, 813 (2015).
Highly relevant here, the Alden dissenters also emphasized a crucial aspect of the sovereignty of the people and the Supremacy Clause of our Constitution that governs when our purported public servants violate our Constitution. When any “action” of any public servant “is unconstitutional,” it “is not the word or deed of the” sovereign people. It “is the mere wrong and trespass of those individual persons who falsely speak and act in [their] name.”
The dissenting justices in Alden were quoting SCOTUS precedent in Poindexter v. Greenhow (1885). In Poindexter, SCOTUS was even more emphatic:
“The government is an agent [of the sovereign people], and, within the sphere of the agency, a perfect representative; but outside of that, it is a lawless usurpation. . . . [T]he maxim, that the king can do no wrong, has no place in our system of government. . . . That which, therefore, is unlawful because made so by the supreme law, the Constitution of the United States, is not the word or deed of the [the sovereign people], but is the mere wrong and trespass of those individual persons who falsely speak and act in [their] name. It was upon the ground of this important distinction that” SCOTUS already had decided very important cases.
“This distinction is essential to the idea of constitutional government. To deny it or blot it out obliterates the line of demarcation that separates constitutional government from absolutism, free self-government based on the sovereignty of the people from that despotism, whether of the one or the many, which enables the agent of the State to declare and decree that he is the State; to say [as the French king famously did] ‘L’Etat c’est moi.’ ”
I wasn't addressing your primary point. But I oppose the presumption or pretense that it makes any sense at all to discuss this issue as if Americans ever did live in a perfect world. The only reason that skin color should even be considered at all with respect to voting is to try to remedy vicious and virulent discrimination based on skin color.
Even so, at some point we need to get over discriminating based on skin color with respect to voting. It's a perpetuation of the separate-but-equal pretense or presumption. It's a way to package people in a way that defeats actual integration.
Certainly, it's fair to take seriously such a question about the operation of the rule of law in the U.S. But--depending on who asked that question and why--I'm not at all sure I'd say that question was fair.
Is it ever fair to presume any people ever did or ever could live in an ideal or perfect world? Such a conception is clearly contrary to the very concept of government, in general, and of our written Constitution, in particular. As James Madison highlighted in Federalist No. 51, a crucial self-evident truth about "government" is that it is "the greatest of all reflections on human nature." "If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself."
Madison highlighted in Federalist No. 10 intimately related problems of human nature (which were among the primary reasons for having a written Constitution that declared the paramount law of the land):
"The latent causes of faction are [patently] sown in the nature of man; and we see them everywhere brought into different degrees of activity, according to the different circumstances of civil society. A zeal for different opinions concerning religion, concerning government, and many other points, as well of speculation as of practice; an attachment to different leaders ambitiously contending for pre-eminence and power; or to persons of other descriptions whose fortunes have been interesting to the human passions, have, in turn, divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to co-operate for their common good. So strong is this propensity of mankind to fall into mutual animosities, that where no substantial occasion presents itself, the most frivolous and fanciful distinctions have been sufficient to kindle their unfriendly passions and excite their most violent conflicts."
Isn't it true that the whole reason for the Voting Rights Act was to recognize and try to remedy "frivolous and fanciful distinctions" (as Madison put it) regarding a particular way in which Americans never did live in a perfect world? Isn't it true that one primary reason the VRA outlawed discrimination in voting "on account of race or color" was that discrimination by some Americans against other Americans on account of race or color was rampant in flagrant (and knowing) violation of clear and controlling provisions of our Constitution? The VRA didn't require proof of animus based on race or color, but it certainly recognized the existence of such animus. Our Constitution (even in 1788) and huge portions of American history and tradition clearly reflected the existence of animus based on race or color.
The Fifteenth Amendment also had long since specifically emphasized that no government had any power to deny or abridge the right "to vote . . . on account of race, color, or previous condition of servitude." That prohibition necessarily was an express acknowledgement of the extreme prevalence of the problem.
The Fourteenth Amendment also had long since emphasized that "No State" had any power whatsoever to "make or enforce any law" that would "abridge [any] privileges or immunities of citizens of the United States" or "deprive any person of life, liberty, or property, without due process of law" or "deny to any person" fully "equal protection of the laws." Those prohibitions necessarily were an express acknowledgement of the extreme prevalence of those problems.
Despite those amendments to the paramount part of the supreme law of the land, when the VRA was written and enacted (and even to this day), purported public servants in state or national government violate their oaths to support our Constitution by violating some or all the foregoing. So is it fair to phrase the question to imply that such discrimination started with or exists primarily because of the VRA?
This article is strangely consistent with the view that the Constitution is colourblind. Race should be used, as you say, not because of the mere fact that a person is black or whatever, but due to the effects that historical discrimination have had on minority communities.
Personally not expressing any views, but interesting piece.
Anyone who asks a question such as "In a perfect world, shouldn’t we avoid drawing districts with race in mind?" and anyone who characterizes such a question as "fair" should consider how Frederick Douglass might answer or address such a question or characterization if he were here to do so.
A discussion of the propriety (or impropriety) of celebrating Juneteenth brought to my attention a speech by Douglass denouncing emancipation as "a stupendous fraud" after he had visited South Carolina and Georgia. See https://www.historyisaweapon.com/defcon1/douglassfraud.html.
Douglass made clear that he would be extremely disappointed to discover that so many people advocate celebrating mere emancipation. He was even more clear and emphatic about how disappointed he would be to learn that even well-intentioned people even today presume or pretend that discussion should revolve around the existence of an imaginary "perfect world."
I’m not sure I understand your point.
Hi Adam. Did you read Douglass's speech? Is there any reason at all to think that the Voting Rights Act was enacted when Americans lived in a perfect world? Did Jim Crow laws and Plessy v. Ferguson sound like a perfect world?
Yes, I’ve read the speech! I’m just not sure how your comment is responding to the thrust of my post. My post is in support of race conscious districting.
If I were responding to the thrust of your post, I'd take issue with your assertion that "Democracy depends on the premise that voters have agency." That assertion reminds me of the characterization of democracy as "bottom up." Both such assertions stand the truth on its head. The people are at the top as the sovereign, and our public servants are merely our representatives, our agents, for purposes of fulfilling their oaths to support and defend our Constitution.
Both the assertions above (about agency and about democracy being "bottom up") ignore the meaning of the word "democracy" and the meaning of the American Revolution. Revolution is related to the word "revolve" not the word "revolt." The revolution was an overturning of old-world notions of power that previously placed the people at the bottom as mere subjects of people with power. The Revolution put the people at the top. Most obviously, that's why our Constitution starts with the words "We the People of the United States." As Justice James Wilson emphasized explicitly in Chisholm v. Georgia in 1793, those words and their placement implicitly "introduced" the "sovereign" in the U.S. Clearly, our Constitution established and emphasized that the people are not at the bottom politically and they don't have mere agency.
The problem with partisan gerrymandering (besides obviously unconstitutionally discriminating against some people based on their expressed political viewpoint and discriminating against other people because of their association with such people) is that it treats voters as subjects instead of as sovereigns. Treating certain people as "protected" does much the same thing.
The People, collectively, are sovereign, as Justice James Wilson and Chief Justice John Jay emphasized in 1793 in Chisholm v. Georgia (https://www.oyez.org/cases/1789-1850/2us419) and as many SCOTUS justices have emphasized, e.g., in Alden v. Maine in 1999 (https://www.oyez.org/cases/1998/98-436) and in Citizens United in 2010 (https://www.oyez.org/cases/2008/08-205).
Irrefutably and clearly, “the Constitution begins with the principle that sovereignty rests with the people” inasmuch as “the people” did “ordain and establish the Constitution.” Alden v. Maine, 527 U.S. 706, 759 (1999). This was “an assertion that sovereignty belongs” to “the whole of the people.” Gundy v. United States, 588 U.S. 128, 152 (2019) (Gorsuch, Thomas JJ., Roberts, C.J., dissenting).
“In our system of government, ultimate sovereignty rests with the people, and the people have the right to control their own destiny.” Obergefell v. Hodges, 576 U.S. 644, 741 (2015) (Alito, Scalia, Thomas, JJ., dissenting). “[T]he critical postulate” of our Constitution is “that sovereignty is vested in the people.” United States Term Limits v. Thornton, 514 U.S. 779, 794 (1995). “[T]he animating principle of our Constitution” was “that the people” are sovereign and the “source of all the powers of government.” Arizona State Legis. v. Arizona Independent Redistricting Comm’n, 576 U.S. 787, 813 (2015).
Highly relevant here, the Alden dissenters also emphasized a crucial aspect of the sovereignty of the people and the Supremacy Clause of our Constitution that governs when our purported public servants violate our Constitution. When any “action” of any public servant “is unconstitutional,” it “is not the word or deed of the” sovereign people. It “is the mere wrong and trespass of those individual persons who falsely speak and act in [their] name.”
The dissenting justices in Alden were quoting SCOTUS precedent in Poindexter v. Greenhow (1885). In Poindexter, SCOTUS was even more emphatic:
“The government is an agent [of the sovereign people], and, within the sphere of the agency, a perfect representative; but outside of that, it is a lawless usurpation. . . . [T]he maxim, that the king can do no wrong, has no place in our system of government. . . . That which, therefore, is unlawful because made so by the supreme law, the Constitution of the United States, is not the word or deed of the [the sovereign people], but is the mere wrong and trespass of those individual persons who falsely speak and act in [their] name. It was upon the ground of this important distinction that” SCOTUS already had decided very important cases.
“This distinction is essential to the idea of constitutional government. To deny it or blot it out obliterates the line of demarcation that separates constitutional government from absolutism, free self-government based on the sovereignty of the people from that despotism, whether of the one or the many, which enables the agent of the State to declare and decree that he is the State; to say [as the French king famously did] ‘L’Etat c’est moi.’ ”
I wasn't addressing your primary point. But I oppose the presumption or pretense that it makes any sense at all to discuss this issue as if Americans ever did live in a perfect world. The only reason that skin color should even be considered at all with respect to voting is to try to remedy vicious and virulent discrimination based on skin color.
Even so, at some point we need to get over discriminating based on skin color with respect to voting. It's a perpetuation of the separate-but-equal pretense or presumption. It's a way to package people in a way that defeats actual integration.
Certainly, it's fair to take seriously such a question about the operation of the rule of law in the U.S. But--depending on who asked that question and why--I'm not at all sure I'd say that question was fair.
Is it ever fair to presume any people ever did or ever could live in an ideal or perfect world? Such a conception is clearly contrary to the very concept of government, in general, and of our written Constitution, in particular. As James Madison highlighted in Federalist No. 51, a crucial self-evident truth about "government" is that it is "the greatest of all reflections on human nature." "If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself."
Madison highlighted in Federalist No. 10 intimately related problems of human nature (which were among the primary reasons for having a written Constitution that declared the paramount law of the land):
"The latent causes of faction are [patently] sown in the nature of man; and we see them everywhere brought into different degrees of activity, according to the different circumstances of civil society. A zeal for different opinions concerning religion, concerning government, and many other points, as well of speculation as of practice; an attachment to different leaders ambitiously contending for pre-eminence and power; or to persons of other descriptions whose fortunes have been interesting to the human passions, have, in turn, divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to co-operate for their common good. So strong is this propensity of mankind to fall into mutual animosities, that where no substantial occasion presents itself, the most frivolous and fanciful distinctions have been sufficient to kindle their unfriendly passions and excite their most violent conflicts."
Isn't it true that the whole reason for the Voting Rights Act was to recognize and try to remedy "frivolous and fanciful distinctions" (as Madison put it) regarding a particular way in which Americans never did live in a perfect world? Isn't it true that one primary reason the VRA outlawed discrimination in voting "on account of race or color" was that discrimination by some Americans against other Americans on account of race or color was rampant in flagrant (and knowing) violation of clear and controlling provisions of our Constitution? The VRA didn't require proof of animus based on race or color, but it certainly recognized the existence of such animus. Our Constitution (even in 1788) and huge portions of American history and tradition clearly reflected the existence of animus based on race or color.
The Fifteenth Amendment also had long since specifically emphasized that no government had any power to deny or abridge the right "to vote . . . on account of race, color, or previous condition of servitude." That prohibition necessarily was an express acknowledgement of the extreme prevalence of the problem.
The Fourteenth Amendment also had long since emphasized that "No State" had any power whatsoever to "make or enforce any law" that would "abridge [any] privileges or immunities of citizens of the United States" or "deprive any person of life, liberty, or property, without due process of law" or "deny to any person" fully "equal protection of the laws." Those prohibitions necessarily were an express acknowledgement of the extreme prevalence of those problems.
Despite those amendments to the paramount part of the supreme law of the land, when the VRA was written and enacted (and even to this day), purported public servants in state or national government violate their oaths to support our Constitution by violating some or all the foregoing. So is it fair to phrase the question to imply that such discrimination started with or exists primarily because of the VRA?
This article is strangely consistent with the view that the Constitution is colourblind. Race should be used, as you say, not because of the mere fact that a person is black or whatever, but due to the effects that historical discrimination have had on minority communities.
Personally not expressing any views, but interesting piece.