Harris "birtherism" appearing, say CNN and BBC. "Racism, racism!" they scream, as does every Democrat they interview on the subject, lawyers included.

Well, not racism, and not the same as the baseless conspiracy theories about O being born in Kenya that doubtless gained currency largely because of white racism.

Instead, an accurate allusion by some conservatives to a lacuna in the settled understanding of the rarely self-explanatory US constitution and the federal law regarding US citizenship, to which Trump referred to broadcast media.

The claim is not that she wasn't born in the US but that the then immigration status of her parents makes her qualification questionable.

Similar questions, you may recall, were raised during the campaign of 2016 by some Republicans about Ted Cruz because he was born in Canada.

(John McCain was born at a naval air station in the then US Panama Canal Zone.)

Of course, this is Trump, the King of Chaos, trolling KH and the Democrats.

Trump stokes 'birther' conspiracy theory about Kamala Harris

After a conservative law professor questioned Ms Harris' eligibility based on her parents' immigration status at the time of her birth, Mr Trump was asked about the argument at a press conference on Thursday.

The president said: "I just heard it today that she doesn't meet the requirements and by the way the lawyer that wrote that piece is a very highly qualified, very talented lawyer.

"I have no idea if that's right. I would have assumed the Democrats would have checked that out before she gets chosen to run for vice-president.

"But that's a very serious, you're saying that, they're saying that she doesn't qualify because she wasn't born in this country."

The reporter replied there was no question that Ms Harris was born in the US, simply that her parents might not have been permanent US residents at the time.

Earlier on Thursday, a Trump campaign adviser, Jenna Ellis, reposted a tweet from the head of conservative group Judicial Watch, Tim Fitton.

In that tweet, Mr Fitton questioned whether Ms Harris was "ineligible to be vice-president under the US constitution's 'citizenship clause'".

He also shared the opinion piece published in Newsweek magazine by John Eastman, a law professor at Chapman University in California, that Mr Trump was asked about.

Prof Eastman's argument, which he claims is also being made by other "commentators", hinges on the idea that Ms Harris may not have been subject to US jurisdiction if her parents were, for example, on student visas at the time of their daughter's birth in California.

"Her father was (and is) a Jamaican national, her mother was from India, and neither was a naturalized US citizen at the time of Harris' birth in 1964. 

That, according to these commentators, makes her not a 'natural born citizen' - and therefore ineligible for the office of the president and, hence, ineligible for the office of the vice president."

In 2010, Prof Eastman ran to be the Republican candidate for California attorney general. He lost to Steve Cooley, who went on to be defeated by Ms Harris, the Democratic candidate, in the general election.

Following furious backlash to the Newsweek op-ed, its editor-in-chief Nancy Cooper stood by the decision to publish, arguing on Thursday that Prof Eastman's article had "nothing to do with racist birtherism" and was instead "focusing on a long-standing, somewhat arcane legal debate".

BBC and every Democratic news source are denouncing this as racist garbage, but it is true that not just everyone born here is a citizen on that account, at all.

And even generally liberal Wikipedia reports there are areas of unclarity in the law where there are competing theories about who, born here, is automatically a citizen and the Supremes have never ruled in such a way as to cover all questions.

On the other hand, if immigration authorities at the time did not require her naturalization but accepted her birthright, would a court balk now?

And, personally, I would favor a generous reading of the constitution on this matter, even allowing birthright citizenship and qualification for the presidency to children born here to illegals.

And KH's parents were not illegals, but legal immigrants not yet granted permanent residency when she was born in Oakland, reportedly.

As I have suggested more than once, it is a flaw in our constitutional arrangements that we do not have a clear account of citizenship settling all questions of eligibility and no formal authority conducting formal reviews of persons coming forward as candidates whose OK is legally necessary to even being a candidate.

<Update>

BBC just now indicated on the air the lawyer who brought up the issue in Newsweek sees daylight between being a birthright citizen under the 14th Amendment and relevant US law on the one side and being "a natural born citizen" in whatever is the sense required by Article II, Section 1. 

He did not question, as I took the article above to indicate, whether KH is a birthright citizen under the 14th Amendment but whether she is a natural born citizen. 

The article above cited and quoted has the two questions rather muddled. 

Cruz and McCain were not even born here but were accepted by most people as natural born.

Why really should we accept that someone who was born here and is a citizen on that account is not natural born? 

Has any court ruled on the general question?

Could anyone seek a ruling?  

I personally would have thought anyone who did not need to be naturalized is natural born.

This is Article II, Section 1. 

No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States 

 </Update>

Good answer, but what was the question?

Supreme Court: Montana Can't Exclude Religious Schools From Scholarship Program

A First Amendment free exercise issue, a Fourteenth Amendment equal protection (anti-discrimination) issue, or both?

Roberts went with the conservatives on this one.

Looks like substantive due process rather than equal protection. Interesting either way.

Detroit students have the right to an education, federal appeals court rules

No hint of the basis for this call in the story but there is a link to a pdf of the opinion, Gary B. vs. Gretchen Whitmer.

Base redistricting on the count of citizens? Base apportionment on it?

Gorsuch Comments Preview Endgame If Citizenship Question Is Added To Census

Redistricting is a matter of states carving themselves up into X districts once the census data determine they are to have X seats in the federal House of Representatives, as well as into districts for representation in their state legislatures.

Apportionment of seats in the House of Representatives to the various states, according to the constitution, is to be based on the census, a count of all persons in the states, not a count of all citizens.

And the regnant view of what the principle "one person, one vote" requires is that state legislative districts as well as federal house districts must contain as nearly as possible equal populations, not equal populations of citizens.

There is some concern a conservative court would allow redistricting of state legislative districts and federal House districts to be based on equal populations of citizens.

And there is concern that a conservative court might decide apportionment should be based on the states' totals of citizens rather than persons, perhaps appealing to the supposed aims or expectations of the original framers (ratifiers?) of the relevant portion of the 14th Amendment, though contrary to the clear meaning of its words and every court's interpretation ever since.

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.

Elsewhere it is being reported that a leading concern of Democrats - and one may suppose a hope of Republicans - is that illegals will be afraid to complete the census and so the census will under-report population in states with lots of them, resulting in fewer seats in the house being assigned Democratic states.

But if the Supremes decide on such a reading of the 14th Amendment rule of apportionment the results would be, one supposes, even worse for the Democrats.

Update.

The constitution's theory of representation cannot plausibly be said to be that only voters are represented, or only citizens.

It is clear that the theory, at any rate since the Civil War, has been that elected officials represent everyone in their constituencies, adults and children, voters and nonvoters, men and women, . . . just everybody, excepting Indians not taxed.

And that exception has been left behind, too.

Equality of representation of all persons is what is guaranteed by apportionment and redistricting based on population.

Not equality of votes across districts, or equality of influence of voters across districts.

Reading "We the People"

The Fourteenth Amendment and originalism.

Recall that Scalia frequently insists on the narrowest, text-only version of originalism, but in practise sometimes allows the supposed aims of the framers, authors, ratifiers, or whoever to play a decisive role, and sometimes the expectations of such persons as regards how their work would or would not be read.

No honest originalist reading can depart from or ignore these, nor can any honest decision defy these.

To escape the cage of originalism there is only recourse to Article V.

Recall, too, that he does not accept incorporation as being available to anyone in that cage, though lately some have floated arguments to the contrary concerning the framers aims and expectations regarding the privileges or immunities clause of the 14th Amendment.

Early in his book, EC alludes to a number of issues concerning the equal protection clause of this amendment. 

No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.

These include the questions (1) who is to be protected equally, (2) from what are they to be protected, and (3) with whose protection is theirs is to be compared.

As to (1), leaving aside anything fishy in your 18th Century dictionary of American English and consulting only the meanings of the word, it is as clear as one could wish that the clause protects everybody.

And as to (3), again adverting to the bare text, is appears the protection of each is to be compared to that of everyone and anyone else.

Putting it together in a nutshell, all are to be protected equally. No one may be discriminated against as regards protection from whatever it is that they are to be protected from.

But EC cites a WAPO report of an interview in California Lawyer in which Scalia claims (as EC reports) that the clause does not protect women because the framers of the amendment never meant to protect them.

There is no indication why we should believe that.

Elsewhere EC points out that while it is pretty certain the framers of the clause at least meant to guarantee equal protection to the freedmen, it is abundantly likely they meant also to guarantee their descendants in perpetuity.

As for myself, I think that if those groups were the only ones they meant to guarantee protection they would not have chosen the universal language of the clause.

As to (2), again adverting to the bare text, it appears we may suppose that the clause is to assure equality of protection against anything law protects people from.

And that would include, say, crimes, violations of contracts, and the like.

Crimes such as lynching, raping, arson, robbery, kidnapping, bullwhipping, and torture – pretty much the entire repertoire of the followers and heirs of Nathan Bedford Forest would be covered.

Elsewhere he alludes to the argument that, since the same congress that passed the 14th Amendment also imposed segregation on the DC schools, they clearly did not aim at protecting anyone from that, and would have expected it not to be read as offering such protection.

He point outs that the unanimous court that ruled in Brown against the constitutionality of segregation was perfectly aware this was not an aim of the framers, and contrary to their likely expectations.

I note that Brown appears to prohibit, via the equal protection clause, not merely unequal protection by the law, but more broadly unequal treatment at the hands of state governments.

Recall that Brown held that separate is never in fact equal, and that segregation of the races imposes an indelible and undeniable stigma, a brand of inferiority and unworthiness, on the people of one race.

That is very far from equal treatment at the hands of the state.

In this way the decision goes beyond the original meaning as well as the aims and expectations of the framers.

Since that time various laws and courts have shifted the ground a little more taking the equal protection clause to require or anyway license governments to ensure equality of treatment (or non-discrimination) by employers, service providers, schools, and so on.

It’s become a quite large and complicated part of the law, based on readings of the clause far from and in some ways even contrary to any or all of the text as originally meant, the aims of the framers, and the expectations of the framers.

And all of that in service to the liberal value of equality and defiance of the strictures of originalism.

But EC also cites a case not based on the 14th Amendment as an instance of judges departing that far from anything originalism could countenance, in furtherance of liberal values and direct opposition to the conservative values served expressly by the text and contrary to anything credibly ascribed to the framers as relevant aims and expectations.

In Home Building and Loan v. Blaisdell (1934) the Court upheld a Minnesota law prohibiting foreclosure of farm mortgages, despite Article 1, Section 10 (EC wrongly cites Section 9) of the constitution.

No state shall . . . pass any law . . . impairing the obligation of contracts.

The words, the aims, and the expectations of the framers were that exactly such laws were to be forbidden by this clause.

But the country was in the depth of the Great Depression, and exceptional times call for exceptional measures, the court explained.

EC approves, and so do I.

The usual suspects do not.

BTW.

EC at one point says, judging by the likely aims and/or expectations of the framers, ratifiers, voters, of whoever, and though the use of masculine pronouns, given the grammatical conventions in play, is not decisive, no woman can be president.

I think he is right about those aims and expectations, and right that those aims and expectations commit any honest originalist to insist the constitution does not allow women to hold that office.

Don't like it?

Go get a suitable amendment passed.

It is worth thinking about that understanding the First Amendment to protect forms of expression and media other than audible speech heard in person and live and anything producible by an 18th Century press takes us out of the cage of originalism.

So does taking that amendment to protect freedom of association.

So do the extensions of the right to privacy (or disestablishment, as you will) to insulate much of our sex lives from control by laws imposing traditional Christian sexual morality.

So does regarding a warrant as needed in case the police want access to GPS data tracking someone's movements (that is neither a search nor a seizure of that person or his effects, and whatever corporate entity has such records is not the suspect in such a case).

So do the Air Force and paper currency.

So does a lot of the invisible ink constitution, which, according to EC, is where we have to look for constitutional warrant for Judicial Review of federal laws and executive actions.

A huge body of what can be constitutional only outside the cage of originalism would never be challenged by any sane conservative, not even one claiming to be an originalist.

Again, BTW.

EC refers to an early case of his in which a person was sentenced under California's three time loser law to life with no possibility of parole for 50 years for shoplifting $153 worth of video tapes.

The defendant had no history of violent crime and no one in the history of the US had ever been sentenced to life for shoplifting before.

That sentence was appealed to the Supremes as contrary to the 8th Amendment exclusion of cruel and unusual punishments.

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

5-4, conservatives vs. liberals, the court said the sentence was fine.

Since the punishment was egregiously both cruel and unusual and no argument is cited referring to the aims or expectations of the Framers, ratifiers, or whoever, EC opines they just wanted to send a strong law and order, get tough with crime message.

And when you read of this and think of the slap on the wrist that career criminal, Paul Manafort, got for a lifetime of much worse and much more numerous crimes you cannot possibly avoid disgust with the classism rampant in law enforcement from the ground up.

California voters later changed the law to require that the third strike had to be for a serious or violent crime, and the fellow was released.

What can't the Duce do?

Whatever they won't let him get away with.

Kirstjen Nielsen: Eliminating Birthright Citizenship ‘On The Table’

Bozo might impose his own "interpretation" of the 14th Amendment, overturning more than a century of repeated rulings he really hates ("We're a laughing stock! Our laws are a laughing stock!" The whole world is laughing at us!") with a simple Executive Order.

Birthright

Trump reignites debate in Congress over ending birthright citizenship

Ryan has said flat out it would require a constitutional amendment.

But a number of congressional followers of the Duce have urged that the congress can command courts to interpret the 14th in such a way as to deny birthright citizenship to children of illegals.

That, too, is bullshit, but it's a kind of bullshit very popular among the "low information voters" who comprise the bulk of the non-rich Republicans.

Republican Sen. Lindsey Graham of South Carolina, a critic-turned-ally of the President, said on Tuesday that he plans to introduce legislation in line with Trump's vow of executive action, while Republican Rep. Steve King of Iowa, an immigration hardliner who has been rebuked by members of his own party for incendiary comments on immigration and diversity, seized on the President's remarks to promote legislation he has previously introduced to end birthright citizenship as it currently exists.

It's not likely that any legislation challenging birthright citizenship would pass out of Congress, in part because there's no broad base of support on Capitol Hill in favor of doing so and any effort to challenge the policy would be highly divisive.

"At this point, it's really a minority within the Republican Party that's advocating for the end of birthright citizenship," said Sarah Pierce, a policy analyst at the nonpartisan Migration Policy Institute. 

"There have been bills that have been introduced since the early 1990s that would limit or end birthright citizenship, but they have never had enough support to pass even out of committee, much less out of Congress."

. . . .

Legislation like what King has introduced does not attempt to alter the text of the Constitution as it is written, but rather seeks to reinterpret the way a key passage of the 14th Amendment is commonly understood. 

The bill would restrict birthright citizenship so that children born in the United States to unauthorized immigrants would not automatically be granted citizenship. 

It currently has 48 cosponsors, all of whom are House Republicans.

Many legal experts believe, however, that efforts to reinterpret the 14th Amendment would not pass constitutional muster.

The Duce starting a slomo coup?

President Trump says he plans to end birthright citizenship with an executive order

President Donald Trump said in an interview that he plans to sign an executive order ending "birthright citizenship" for the children of non-American citizens who are born on U.S. soil, a move that would likely be challenged immediately in the courts over its constitutionality.

"It was always told to me that you needed a constitutional amendment. Guess what? You don't," Trump told "Axios on HBO" in an interview set to air Sunday, just two days before the midterm election. 

"You can definitely do it with an act of Congress. But now they're saying I can do it just with an executive order."

"We're the only country in the world where a person comes in and has a baby, and the baby is essentially a citizen of the United States, with all of those benefits," Trump said. 

(Per WorldAtlas, about 30 nations grant birthright citizenship.)

Several lies there.

The 14th Amendment says in pertinent part "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."

Numerous Supreme Court decisions since then have affirmed that the language of the Amendment covers persons born in the US to non-citizens, whether here legally or illegally.

The constitution nowhere says nobody else is a citizen, and the Congress in the early 20th Century extended citizenship to Native Americans.

So, two hypotheses apply, whether or not Trump believes his own garbage and sincerely thinks he can constitutionally deny the application of birthright citizenship to children of non-citizens.

First, his voters will believe his claim and, when the courts stop him, he and they will howl and scream but beyond increasing the hatred of his base for the actually existing constitution and government, that will be an end to it.

Or, second, when the courts stop him he will order the AG and all executive branch agencies and persons to act in a manner consistent with his EO.

That will precipitate a crisis first within the executive branch and, if successful there, amounting to successful defiance of the authority of the Supremes and the authority of the constitution, ending subjection of the presidency to either and to actual law.

That's the first big step in a slomo coup to get rid of the legitimate and lawful republican government he and his deplorables hate and replace it with something more, uh, Venezuelan.

Yep.

I said that.

The Democrats would certainly impeach him in the house.

What would happen in the senate?

Which do I want?

We can have comity in the senate and let the newly emboldened right wing court not only take away the constitutional privacy right on which rests a woman's right to choose but start disassembling Obamacare, Medicaid, Medicare, Social Security, and other bits of Big Government, while they gleefully chip away at the apparatus of law and regulation resting on a robust understanding of the 14th Amendment.

Or we can keep all those achievements of progressive government by impeaching Kavanaugh or his rubber-stamp replacement and packing the court.

We can have comity, but the wife and I will be eating cat food in a dark, cold house in winter and a dark, hot one in summer, she will be going short on insulin and I will be taking half-doses with my inhalers, and we will eventually have to move out of our house and into Section 8 housing with the addicts and gangsters - until the GOP drops public housing altogether and my wife's one kid takes us in or we become homeless.

Do I value comity that highly?

Tell me why the leaders of the Democratic Party should?

Jeffrey Deaver, again

The Twelfth Card.

Deaver is not stupid.

But he retails the stupid "three fifths of a man" whine.

It would have been better for the slaves had they not been counted at all.

See the 14th Amendment, Section 2.

Nay, had their number been subtracted from the state population in determining representation in the House, that would have been better, yet.

Deaver's characters stupidly compare this to the full counting of women, as disenfranchised as slaves.

Maybe Deaver is stupid, and doesn't see that while disenfranchisement of women favored males equally in all states disenfranchisement of slaves favored, in representation in the House, because slaves were counted at all, the power of voters in slave states over free.

And that diminished the power of those who would protect slaves or inhibit the power of their owners or, ultimately, abolish slavery.

How is the constitution to be read?

A clear majority wants the Supreme Court to uphold abortion rights, polls say

More than 60 percent of Americans want the Supreme Court to uphold Roe v. Wade, the landmark ruling that legalized abortion nationwide, according to recent polls.

. . . .

Such a decision would not align with the views of most Americans, according to the polls. 

Sixty-one percent of Americans want a new justice who will vote to uphold Roe, while only 31 percent prefer a judge who will overturn it, an NBC News/SurveyMonkey poll released Tuesday found.

And yet when asked they want the provisions of the constitution interpreted and applied much as the Federalist Society would insist.

I don't want the constitution interpreted and applied in that manner, partly because contrary readings are often equally plausible, partly because some crucial provisions are hopelessly vague, partly because we are so far from the world of the 18th Century that it is mad to have an 18th Century government, partly because the Federalist Papers, while informative and helpful, are not part of the constitution and were neither reviewed nor voted on at the Convention, partly because the document is so often crucially silent, and partly because when it is not silent it is so often absurd.

Is paper money constitutional?

The Federal Reserve System?

The Air Force?

What about Medicare, Social Security, Medicaid, Food Stamps, and Obamacare?

If Article I Section Eight clauses 1 and 18 are grants of substantive powers they are all constitutional.

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

If not then none of them are.

Liberals commonly say they are, making all of them legit.

Conservatives are the hypocrites who say they are not in order to undermine these and other progressive creations while recoiling from the evident implication the Federal Reserve System and the US Air Force, too, must go.

Which reading is reasonable? The matter was contested from the start.

Can the federal government impose a minimum wage, impose and control a program of unemployment insurance, extensively regulate workplace safety, and intensively,  police the market in food and drugs?

Can labor law provide that, on a majority vote, all workers for a company can be represented by a union they must all join and to which they must all pay dues?

Looking at the commerce clause as well as the above clauses, liberals say yes.

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes

Conservatives read the same texts and say no, while reading Article I Section 10 Clause 1 (impairment of contracts) as denying ability to do these things to the states.

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

Does the government need a warrant to tap your phone, intercept your emails, or use electronic equipment to eavesdrop on what is going on in your house?

To take your fingerprints?

To take your DNA?

Moderns read the Fourth Amendment and insist the government does need a warrant.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Does the constitution by implication ( via emanations and penumbras, perhaps) create a federal right to privacy that the 14th Amendment imposes also on states, that disallows prohibition of use of birth control, that disallows criminalization of homosexuality, and that disallows criminalization of abortion if the unborn are not legal persons and so lack rights?

Liberals nowadays say yes to all of that, while conservatives deny it all.

And there is just so much utter silence in the constitution, providing occasion for endless dispute and inviting judges and politicians to fill lacunae with a constitution of invisible ink.

What is due process?

What is equal protection of the laws?

Whence comes incorporation?

Can a cabinet member be fired, and by whom?

Cabinet members must report to the president, but nothing says they serve at his pleasure or even that they must obey him, no matter the outrage such a truth must provoke in the hearts of partisans of ever greater presidential power.

Can a president pardon people in advance of their crimes?

Can he pardon himself?

The moron in the White House and the Constitution

The Fifth Amendment binds the federal government and we should all be glad nobody believed Madison that a Bill of Rights was unnecessary.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; 

nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; 

nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; 

nor shall private property be taken for public use, without just compensation.

It doesn't say "no citizen" and courts have never thought it means "no citizen".

The Duce this morning tweeted.

We cannot allow all of these people to invade our Country. 

When somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came. 

Our system is a mockery to good immigration policy and Law and Order. 

Most children come without parents...

....Our Immigration policy, laughed at all over the world, is very unfair to all of those people who have gone through the system legally and are waiting on line for years! 

Immigration must be based on merit - we need people who will help to Make America Great Again!

Discussing this today MSNBC thought it pertinent to display and read section one of the Fourteenth Amendment.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; 

nor shall any State deprive any person of life, liberty, or property, without due process of law; 

nor deny to any person within its jurisdiction the equal protection of the laws.

Three days ago Der Fuhrer reportedly tweeted on the same point.

“We shouldn’t be hiring judges by the thousands, as our ridiculous immigration laws demand, we should be changing our laws, building the Wall, hire Border Agents and Ice and not let people come into our country based on the legal phrase they are told to say as their password,” Trump tweeted.

The only part of the constitution his fans care about is the Second Amendment.

Partisan gerrymandering unconstitutional, says judicial panel

North Carolina Congressional Map Ruled Unconstitutionally Gerrymandered

A panel of federal judges struck down North Carolina’s congressional map on Tuesday, condemning it as unconstitutional because Republicans had drawn the map seeking a political advantage.

The ruling was the first time that a federal court had blocked a congressional map because of a partisan gerrymander, and it instantly endangered Republican seats in the coming elections.

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

The ruling and its chief demand — that the Republican-dominated Legislature create a new landscape of congressional districts by Jan. 24 — infused new turmoil into the political chaos that has in recent years enveloped North Carolina.

. . . .

The Supreme Court has struggled without success for decades to develop a legal standard for determining when a partisan gerrymander crosses constitutional lines. 

The court once came close to ruling that such cases were political matters beyond its jurisdiction. 

But the rise of extreme partisan gerrymanders in the last decade, powered by a growing ideological divide and powerful map-drawing software, has brought the question back to the justices with new urgency. 

A Supreme Court ruling outlawing at least some such gerrymanders could reshape the political landscape.

Equality of protection vs. protection of equality

The Masterpiece Cakeshop Case Is Not About Religious Freedom

But Masterpiece has nothing to do with religious freedom. It’s about enshrining a freedom to discriminate.

She's right.

But liberal dogmas about a duty of the federal government to compel provision of service remain contentious, as well as liberal dogmas about its constitutional authority and right to do so.

The status quo ante, before liberals created this normal, still new as of the 1960s, was one in which the states did not compel anyone to provide service to anyone, but rather in some cases in some states actually forbade provision to persons belonging to some groups, or heavily intruded on just what services could be provided.

Those laws, generally but not only state laws (think of legally mandated segregation in the District of Columbia), interfered with the liberty of service providers by requiring them to deny service, or deny service on equal terms, notably but not only to black people.

These laws did not protect any class of either service providers or people seeking services; hence they did not conflict with any requirement that persons or classes of persons be equally protected.

All the liberals' favored identity groups enjoyed the same protection as anybody else, whether they provided or sought services, which is to say, none.

And yet, the now normal was created by judges and politicians claiming that laws mandating service for the increasingly numerous identity groups listed by liberals, and for no one else, were required in order to guarantee them, exactly, the equal protection of the law.

But it is one thing to say the law must protect individuals equally, if at all.

The 14th Amendment clearly requires exactly that.

It is another to say it must impose or create equality among individuals, or among those belonging to specified groups, in some or any regard or sense.

And that is exactly what liberals want the law do, to require that service providers treat individuals belonging to specified groups equally, if they seek services, as regards provision of those services.

That is what they have demanded since the 1960s, taking up an altogether mendacious reading of the 14th Amendment to which some blacks but also others subscribed as early as the Reconstruction Era, based on what the partisans of so-called "Radical Reconstruction" actually ultimately wanted and sought to bring about, against the relentless and violent opposition of Southern whites and their leaders, so far as they could, that everyone be equally accepted, equally treated, in political, social, and economic life.

Enter, the notion of the Living Constitution.