• Jeffrey Zalles

Gerrymandering and The Supreme Court

With so many issues at stake in 2020, we hear little mention of one of the most important issues in every campaign – the makeup of the Supreme Court. On Thursday, we were given another taste of the Court’s power when it issued a 5-4 ruling striking down challenges to gerrymandering in Maryland and North Carolina.

The ruling, like so many others, points to the fundamental differences between conservative judges, usually Republican appointees, and liberal judges, usually appointed by Democrats. In most cases, the former will follow what was written - the “letter of the law”, while the latter will look to what was intended - the “spirit of the law”.

Take the Second Amendment. Most of us believe that the intent of the framers was to ensure citizen safety in a rural society where there were no phones to dial 911 and the nearest peace officer could be days away. Fire power at the time was a musket that had to be loaded one shot at a time. In the Heller decision of 2008, the Court affirmed gun rights by applying a strict interpretation of the wording of the constitution which stated that individuals had a “right to bear arms” while not necessarily looking to the intent of the law, which was to promote citizen safety. Had the framers been able to foresee society as it is today, would they have written the Second Amendment in the same manner?

In this latest decision, a conservative majority has once again looked to the wording of the Constitution and ruled that the right to determine election districts was a political task given to state legislators and that there was no permission given to federal courts to interfere. However, once again the majority ignored the intent of the framers, as well as subsequent election laws, which is the guarantee of fair elections.

Would our Constitution be a different document had the framers possessed a crystal ball? Probably. The best we can do today is elect candidates who will appoint judges that will give more weight to the intent of the framers than to their language.