Board Certified, Estate Planning and Probate Law - Texas Board of Legal Specialization
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The genius of American democracy lies in part in the implicit covenants that make it workable and stable. The attempt by Republicans in the Texas Legislature to enact new congressional districts at the urging of the national congressional leadership attacks two of these fundamental covenants: forbearance, and respect for periodic decision making.
Forbearance is grounded in an understanding that "what goes around comes around." With only a few outstanding exceptions - the Alien and Sedition Acts during the first years of the republic, reconstruction following the Civil War, and possibly the McCarthy era - our politicians and leaders have understood that might does not make right. The opposition is not to be crushed but to be treated as the loyal opposition, with respect and courtesy, if not deference. Participants acknowledged that the winds of political fortune shift, public opinion changes, and those who are dominant for the moment will likely be subordinate in the future in the on-going creative tension of the democratic decision process.
Disregard of the principle of forbearance characterizes many of the democracies of Latin America and Africa. Elections are often seen simply as a way to grab the power of the state, which is used to silence the opposition. Of course, the opposition does not disappear; it simply grows more radical, frequently resorting to force to be heard. And the pattern repeats as the opposition comes to power, with an escalating cycle of action and reaction. Coupled with forbearance is the principle of periodic decision making. On a regularly scheduled basis, we have elections. The result of each election is honored until the next regularly scheduled election, when the citizens can reevaluate their decision in due course. Only in the most exceptional of circumstances do we depart from this covenant. Similarly, some decisions, such as congressional redistricting, are made by state legislatures following each census, every decade.
Certainly it is traditional and accepted for those with power during redistricting to manipulate that process to favor their continued dominance. But even this manipulation is subject to limitations both substantive and traditional, such as the principle of forbearance and periodic decision making. Without respect for the principle of periodic decision making, however, it is easy to imagine a situation where control of the legislature shifts every two years, with resulting redistricting battles with each shift in power. This will result in escalating disenfranchisement, uncertainty, and contention. If coupled with a lack of forbearance, this cycle escalates, repeating ever more viciously.
There are many practical and substantive reasons that congressional redistricting is a bad idea at present: the expense of a special legislative session during "hard times" when many programs and essential services have been cut to balance the budget, the effective disenfranchisement of substantial portions of the population for mere temporary political gain by removing incumbent Democrats, and the harm to Texas that will result if senior members of Congress were no longer to serve. However, the more fundamental harm is caused by the attack on two of the foundations on which the genius of American democracy and civil society rest: forbearance and periodic decision making.
©2003 Walter Wm. Hofheinz, limited permission granted for redistribution and copying with all attribution and communication information preserved.