Madison's Music Read Online Free Page B

divided state.
    North Carolina isn’t alone. Democrats also polled more than 50 percent of the House votes in Arizona, Michigan, Pennsylvania, and Wisconsin but failed to elect a majority of the House members in those states because of Republican line-drawing artistry. In the seven states most intensively gerrymandered by the Republicans,in 2012 Republicans won the popular votes for the House with just over 50 percent but outelected the Democrats 73–34 with almost no contestable elections. By my calculations, if the gerrymandered lines stay where they are, Democrats would have to poll 58 percent of the national popular vote to win a one-vote majority in the House of Representatives in the 2014 elections.
    Democracy is all about contestable elections. Not surprisingly, they’re at the core of Madison’s First Amendment. A genuinely free, contestable election is the defining event toward which each clause of the amendment converges. Contested elections permit citizens exercising free thought, speech, press, association, assembly, and petition to pass effective electoral judgment on the performance of their representatives. It is irrational to argue that every clause receives First Amendment protection on its own, but the point at which they all converge—a contestable election—is left unprotected, twisting slowly in the political wind. When, as in contemporary America, virtually all district lines are carefully drawn by partisan hands so that everyone knows in advance who will win, elections become a sham, rendering the antecedent protections of free thought, speech, press, collective action, and petition meaningless. The resulting governing process does not deserve to be called a democracy and could never be upheld under a First Amendment that recognizes Madison’s music.
    It would be easy for a Supreme Court capable of hearing Madison’s music to supplement the equality-driven “one person, one vote” principle with a democracy-driven First Amendment protection of contested elections. The problem of identifying a fair representative baseline disappears. Even a Republican justice should be able to figure out that politicians have done away with contestable House elections in North Carolina.
    Of course, given geographical concentrations of voters with similar political preferences (often in cities), genuinely contested elections may not be possible everywhere—unless we adopt proportional representation or experiment with democracy-friendly multimember or at-large districts. But the Supreme Court shouldbe able to apply a First Amendment rule that forbids systematic electoral line-drawing that purposefully eliminates contested legislative elections from the American democratic process. If elections were less predictable, maybe more people would vote. And maybe legislators would make better laws
    BREAKING UP THE REPUBLICRAT CARTEL
    The Supreme Court took a wrong turn in campaign finance law when it tore the Free Speech Clause from its democracy-centered First Amendment roots and misread it as a flat ban on regulating campaign spending. A narrow majority of the Court has gone even further afield in its misuse of a nontextual sliver of the First Amendment—freedom of association—to impose a Republicrat duopoly that allows major-party political bosses to snuff out intra-party insurgencies and prevent third-party challengers from threatening their hegemony.
    As usual, the mistake was to tear a piece of the First Amendment from its democracy-reinforcing context and treat it as a freestanding command. Only this time, the rootless command isn’t even a part of the text. It’s the nontextual protection of freedom of association that was read into the text by Justice Harlan in 1958 in order to reinforce its democratic narrative. Justice Harlan was surely right in recognizing freedom of association as a nontextual First Amendment right. Freedom of association fits all the