Anti-Gerrymandering and Zirkle’s View on President Bush’s Marriage Constitutional Amendment

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Zirkle States His Position on Gerrymandering and President Bush’s Proposed Constitutional Amendment on Marriage

March 5, 2004

1. Gerrymandering

A. Is gerrymandering present in Indiana?

Recently, Ralph Nader has campaigned against what he called “a two-party duopoly which tends towards single party districts.” Mr. Nader has a valid point. I am opposed to intentional gerrymandering by either party, and both parties are guilty of it. The 2nd Congressional District includes 8 counties and then 4 slivers of what appears to be intentional gerrymandering in order to secure the votes of city-dwelling democrats in Elkhart and Kokomo. Also, the chances that the district would exclude Congressman Chocola’s house by only a mile is next to nil. [I suppose that is the democrats' payback for Chocola having raised the next to frivolous issue of whether or not former Congressman Roemer owned property in the district, in what was reminiscent of our nation's early wealth property requirement restrictions for voting. It's domicile or permanent residency and where you maintain your voter's registration that counts, as was seen in my 2002 successful battle with the St. Joseph Co. Republican Party where I cited the Indiana Supreme Court decision regarding then Governor candidate Evan Bayh.] Representative Burton’s District 5 is even more bizarre in that it starts south of Kokomo and swings all the way around and to the south of Indianapolis. .

B. What problems arise with gerrymandering?

After having studied for two economics degrees, I’m a big fan of competition. I believe that non-natural monopolies should be avoided with all due diligence because they are inefficient and cause great harm in many areas. When intentional gerrymandering creates 60-70% party areas, like those in all four of South Bend’s Indiana State Representative districts, the risk of losing any real chance of removing mediocre politicians skyrockets.

The jockeying for position by both parties needs to stop. They both now have computer programs that detail where nearly every registered voter lives. They repeatedly run these programs until they can gerrymander their state to gain the greatest advantage. In the past, gerrymandering has been used to exclude minorities and other disfavored groups. It has also been used to maintain power for what may have been a minority party. In the end, the citizens are the ones who lose under such a perversion of fair representative democracy

The situation is exacerbated when one learns how party primary candidates are anointed, not by the voters, but by a very few number of party officials. For anyone who has attempted to run against a party anointed in the primary, they will quickly learn the lesson that a very small number of individuals decide who will in all likelihood secure the party nomination. Look at governor candidate Eric Miller, for example, who, according to a recent Indianapolis Star article, has to sit at the back of the Republican Lincoln Day dinners while Mitch Daniels gets to speak uninterrupted for a whole half hour.

When politicians know that no possibility exists for them being removed, they can abuse their power. For example, Indiana State Representative Ulmer has recently accused South Bend democrat Pat Bauer of doing just that when he locked out republicans and prevented any debate over the proposed marriage amendment which overwhelmingly passed in the senate.

When the minority party can not compete, then the power in a legislative house or senate can not be changed in any amount of reasonable time. When one understands how committees work, one realizes that democracy does not exist. For instance, a party committee chairman has an almost absolute discretion to hear or kill any bill he or she desires. For example, Michigan City State House Democrat Scott Pelath single-handedly killed the marriage bill amendment in his committee. He was not the first to engage in this tactic. St. Joseph Co. Prosecutor Mike Dvorak was also known to use this anti-democratic tactic. He killed two bills on abortion, one of which was to prohibit gender-selection abortion, and the anti-child pornography bill, which had passed in the senate 47-1. Both Pelath and Dvorak cited spins that the bills could not be passed because they were in a “short” legislative session which was reserved for “emergencies.” It takes a good degree of mental gymnastics to come to the conclusion that the 2004 daylight saving bill was an emergency for the democrats but that preserving marriage was not.

C. Zirkle’s plan to reduce intentional gerrymandering.

My plan will be to eliminate intentional gerrymandering in federal races. I will introduce a bill that will require that a state begin carving their districts in the northeastern most precinct of a county, which will start in the northeastern most county. I have randomly selected the northeast as the beginning corner because that is the region of our county where the first arose. The first county must be filled before a new one is chosen. This bill will include neutral measures of district dividing that will end many of the 60-70 noncompetitive races. By inserting competition into politics, voters will have a better opportunity to remove mediocre politicians and much of the gridlock in Washington will be removed. This bill will put power back into the hands of voters and will encourage more citizens to vote and become actively involved in their government. This country was meant to be a government by, for and of the people. Gerrymandering should not be allowed to squelch the voice of the citizens of this or any other state.

2. Zirkle states his position on the Bush constitutional amendment proposal.

If Bush’s amendment came across my desk, I would vote for it; however, it would not be my first choice for an amendment. I have a better one that I will propose. It will end the judocracy that we currently live in, return us to the representative democracy we were promised by our constitution, and will forever end the scourge of “black robe” disease.

A. After Marbury v. Madison, 1 Cranch 137 in 1803, and its interpreted extensions, the judicial branch has no reasonable checks and balances.

After the constitution was adopted and the Bill of Rights was added, it only took a few years before the judicial branch began a power grab that has led to the near evaporation of representative democracy. That power grab is called the right of judicial review which grants unelected judges the power to strike down any statute that it decides is in conflict with the constitution. One can read the constitution from front to back and will find that nowhere does the text give that power to the judicial branch. Most constitutional scholars will agree that the Marbury decision represents “assumptions” and arguments of authority and not for authority. Many scholars will argue that Congress has at least an equal right to final interpretation of the constitution. The text is silent on the issue. In fact, I would argue that because the text states that Congress “shall make all laws” in Article I, that Congress has the edge on the claim. The Federalist Papers predicted that the judicial branch would be the least harmful. Chief Justice Rehnquist questioned whether that has turned out to be true in his book on the Supreme Court. If we consider that more U.S. American lives have been aborted since 1973 by one vote in a 5-4 decision in the Roe v. Wade case than have been killed in all of our nation’s wars combined, then I argue that taking the position that the judicial branch has turned out to be the least harmful is difficult to defend.

B. What are some examples of judicial review gone amuck?

It took less than 24 hours before the recent congressional vote and presidential signature to be overruled by injunction on the ban on partial birth abortion. The U.S. Supreme Court, besides going off the deep end and declaring that digitized child porn had constitutional protections, has also struck down state statutes on criminal behavior, has set up a near impossible standard when it comes to reducing porn-prostitution through its three-part vague obscenity test, and has contradicted itself time and time again. When I think of all of conflicts in the U.S. Supreme Courts’ rulings, I am reminded of what Martin Luther said about councils in that they had no authority for him, because they have contradicted one another.

Among constitutional scholars, a joke abounds that the U.S. Supreme Court is not final because it is infallible. They are infallible only because they have made themselves final.

C. How I plan to fix the system.

I do support judicial review because we do not want to have an emasculated judicial branch. However, amending the constitution every time a 25-year old law clerk persuades a distracted judge to write a bizarre opinion inconsistent with the people’s wishes is impractical. I know of no one who would say that judges have erred only 17 times since the Bill of Rights was adopted (There are 27 amendments).

While there is overwhelming support for the marriage preserving amendment that President Bush has proposed, this may be a once in lifetime opportunity to fix judicial review, place for the first time since 1803 a reasonable check and balance on the judicial branch, and put an end to what lawyers call “black robe disease,” which is an arrogance of power that enters, on rare occasions, the benches across our land.

My proposed amendment will declare for the first time that the judicial branch does have the power of judicial review; however, Congress also has the right to interpret the constitution. Deference will initially be given to the judicial branch; however, Congress may overrule any legal decision upon a super-majority vote (at least 2/3 in each house) with the executive signature. Some have proposed limiting the power of judicial review unless there is a unanimous verdict among the judges. My plan is better because a 3-judge panel on the Court of Appeals could make a decision. Representative democracy is too precious to leave in the hands of either 3 unelected judges on a circuit court of appeals or even among all 9 members of the U.S. Supreme Court.

Your presence is welcome.

It’s the Kids, Smartie Campaign Committee