We had an illustration Tuesday night of one of the most crucial questions in our current politics and the one that will determine whether civic democracy can have a rebirth in the U.S. Gerrymandering is a bane to civic democracy because it dilutes the expression of the popular will by building district lines around partisan advantage or to diminish the power of disempowered minorities. Democrats spent much of the 2010s and 2020s fighting a legal and legislative battle against gerrymandering. But the Roberts Court has chosen to legalize every manner of gerrymandering, making the current a destructive race to the bottom.

Democrats had a choice. They could express effete outrage and a meaningless devotion to broken norms and principles and agree to wage elections on a permanently tilted plane. Or they could decide to play by the rules Republicans had forced on everyone. They did just that and it was unquestionable the right decision by every measure. It really never seemed to occur to Trump Republicans that Democrats would fight on the playbook Republicans created. There’s a special comedy to this because anyone familiar with the facts on the ground knew that Republicans had already used gerrymandering much more aggressively than Democrats. So there was much more juice in the gerrymandering lemon for Democrats if and when they decided to employ tactics Republicans have been using for more than a decade. It’s worth Democrats considering how deeply Republicans had internalized the belief that Democrats would simply never respond in kind.

I wanted to share a few thoughts on questions that are adjacent to or secondary to the question the Supreme Court is being asked to take up today. That is in part because there is no real question they are being asked to take up. Birthright citizenship is the clear, intended and unambiguous law of the federal constitution. One might as well try to complicate or question whether the document creates a federal senate. I have a source and correspondent deep in the federal bureaucracy who is a specialist in a specific area of federal law unrelated to citizenship questions. And even though I’ve written about this at length over the years, by going over developments in this person’s area of law with them it has helped me crystalize my own thinking on this topic.

Almost all of these cases are based on the premise, the working assumption of what can the U.S. Constitution mean if we decide that words or established phrases simply have no meaning and we can simply piece the individual words together based on their dictionary definitions? So what does the “law of the land” mean? Well, it turns out some guy who did a stint at the Claremont Institute and now teaches at some obscure law school has written a bracing new law review article about how it refers to agricultural policy, mineral and agricultural rights and the law of farming. That’s really where we are here.