[EL] Evenwel brief

Mon Aug 3 06:00:26 PDT 2015

I agree that it has been a problem for many decades -- don't forget  Plessy 
or Dred Scott -- but, in recent years, conservatives have advocated for,  
and they largely agree to, a more originalist view, regardless of the outcome 
to  their personal policy prefences.  Liberals have taken it up a notch in 
the  other direction with the Living Constitution Doctrine.  So currently, 
you  can blame them for this.

Regardless of who is to blame, and at what time in our history, my point is 
 that it is just a bad idea for judging in a "self-governing" democracy 
because  it gives all power to unelected judges.  Right now the liberals are  
all cheering like it will always result in liberal victories, but oh how the  
worm turns.  Jim

In a message dated 8/3/2015 8:41:03 A.M. Eastern Daylight Time,  
esegall at gsu.edu writes:

Jim's belief that their is a distinction between "living  
constitutionalists" and others is not descriptively accurate when discussing  the Supreme 
Court. Whether it is election law, the 14th Amendment, or of  course the 10th 
and 11th Amendments, the Justices on both sides will forego  text, history 
and precedent when their policy goals are important enough. This  has been 
true since 1803 (The Legal Tender cases make the point  dramatically). 

I'm surprised a litigator of his experience would think anything else.  The 
"living Constitution" is no "liberal" invention.

Best,

Eric

Sent from my iPhone

On Aug 3, 2015, at 7:30 AM, "Marty Lederman" <_lederman.marty at gmail.com_ 
(mailto:lederman.marty at gmail.com) >  wrote:

Jim, my principal point was that no one in  Evenwel -- so-called "living 
Constitutionalists" or otherwise --  is much relying upon textual arguments, 
because the text obviously does not  command or foreclose any one of the 
options I listed.  The Court didn't  rely upon text in Wesberry and Reynolds, 
either (except for  Justice Black's somewhat weak invocation of "the people" 
in Article I in the  former case); instead, it relied upon a “conception of 
political equality  from the Declaration of Independence, to Lincoln’s 
Gettysburg Address, to  the Fifteenth, Seventeenth, and Nineteenth Amendments,” 
and upon "our  Constitution's plain objective . . . of making equal 
representation for  equal numbers of people the fundamental goal."  Do you think the  
Court's decisions in those cases were wrong because of the absence of a  
textual mandate?  

As for stare decisis, on the one hand you  appear to be in favor of 
affording at least a strong presumption of  deference to past decisions; but on the 
other, you say--quite  correctly--that the Court should be willing to 
overrule precedents that are  not "consistent with" "the Constitution's words, 
the meaning of the words,  and the Founder's intent."  So far, so good.  But 
then you assert  that Austin and McConnell satisfied that demanding test for  
overruling--and did so "easily."  To which I can only respond:  I  give you 
much more credit than that.  You're a sophisticated advocate,  as 
demonstrated by your briefs in those and related cases.  Whatever  the relative 
merits of Austin, McConnell and Citizens  United might be, I'm fairly confident 
you don't genuinely believe that  the words of the First Amendment compel one 
answer rather than  another.  In any event, that's not how your briefs read 
-- and for good  reason. 

On Sun, Aug 2, 2015 at 1:27 PM, <_jboppjr at aol.com_ (mailto:jboppjr at aol.com) 
> wrote:

Marty, thanks for the questions but this is not an issue that I  have, or 
plan to, study. But I do note the irony of Living  Constitutionalists relying 
on textual arguments.  
And as to your point about the overruling of Austin and  McConnell, I am 
not surprised you raised it. The Court has overruled some  250 precidents 
expressly, as I understand it. In so doing, the first  question should be 
whether the precident is consistent with a proper  understand of the Constitution 
ie the Constitution's words, the meaning of  the words, and the Founder's 
intent. As to Austin and McConnell, I think  the answer is easily no. 
Then there is the question of reliance on the prior precedent.  It is not 
"60 years of practice" but years of reliance on the precedent  itself - here 
since 1986 and 2003. In 2010, less than 25 years. And again  not a major 
obstacle. 
But my point is, that you did not address, that all of this is  irrelevant 
in a Living Constitution world. The Constitution is to be  rewritten at will 
to enforce the new and improved understanding of what is  good for America. 
And this can equally go in any direction - hoisting  liberals on their own 
petard. Jim 

Sent from AOL Mobile Mail 

____________________________________
On Sunday, August 2, 2015  Scarberry, Mark <_Mark.Scarberry at pepperdine.edu_ 
(mailto:Mark.Scarberry at pepperdine.edu) >  wrote:

As  a not-completely-consistent originalist\textualist\contextualist, I’d  
suggest that key constitutional texts that ought to be at issue are (1)  
sections 2 and 5 of the 14th Amendment (restating, in section  2, to some 
degree, Art. I, sec. 2, cl. 3); Art. I, sec. 4, cl. 1; and the  15th, 19th, and 
26th Amendments (together  with their provisions for enforcement by 
Congress). Note the repeated  emphasis on voting rights of citizens and also the 
principle of counting  all persons (not just citizens) for purposes of 
apportioning House seats.   
The  congressional debates over the history of section 2 of the 14th  
Amendment show a keen concern for allowing citizen voters power to  represent 
non-citizens’ or non-eligible-for-voting citizens’ interests  (except, in 
section 2 of the 14th Amendment, representation of  persons who are 
disenfranchised despite citizenship etc.). See my article  on the failed DC House Voting 
Rights Act. 
There  is plenty of room for a state to use either citizens or total 
population  in apportionment.  
None  of this is original with me, of course. 
Mark 
Mark  S. Scarberry 
Professor  of Law 
Pepperdine  Univ. School of Law 

From:  law-election-bounces at department-lists.uci.edu  
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf  Of Marty Lederman
Sent: Sunday, August 02, 2015 5:39  AM
To: Jboppjr
Cc:  law-election at uci.edu
Subject: Re: [EL] Evenwel  brief  

Jim:  Here's the pertinent constitutional text  that the Framers wrote:  
"nor shall any state . . . deny to any  person within its jurisdiction the 
equal protection of the laws."  I'm curious which of these results you think 
those words  command: 

1.  States must draw their districts to roughly  equalize population in 
each. 

2.  States must draw their districts to  roughly equalize numbers of 
citizens in each. 

3.  States must draw their districts to  roughly equalize numbers of 
citizens of voting age in each.

4.  States must draw their districts to  roughly equalize numbers of 
registered voters in each.

5. States must choose from among one of Choices 2-5, at  their discretion.

6.  States are free to draw their districts  without regard to the number 
of persons, citizens, registered voters, or  citizens of voting age within 
each district.

Also, I'm heartened to see that you think "prior  decisions" of the Court 
ought to be (in some sense) "sacrosanct."  I  assumes this means you've had a 
change of heart about Austin and  FEC v. McConnell (and the 60+ years of 
practice that they had  ratified).

On Sun, Aug 2, 2015 at 8:18 AM,  <JBoppjr at aol.com> wrote:

The  problem with this well argued critique of the Evenwel brief is  that, 
in the age of the Living Constitution, it is just irrelevant. What  the 
Framers adopted in the Constitution and what they intended when  they wrote it 
does not address our evolving, new and improved  understanding of what is 
right and just for America today.  And  when the "Legislature" means the 
"People," and "established by the  States" means "established by the States and 
the federal government,"  honestly who cares what the Framers wrote. 

And  if prior decisions of the Court are just to be rewritten or discarded 
at  will to get the new and improved result, then what is sacrosanct about  
Garza or Los Angeles County or Burns that they should stand in the  way?

So  the problem here is that if the Court is not tethered to the  
Constitution and the plain meaning of its text when liberal results  obtain, why is 
it suddenly limited by the words of the Constitution when  liberals think 
that the Framers actually got it right?  Jim  

PS  I have not studied this issue so I have no opinion on who is right or  
what the right answer is.

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