[EL] Evenwel brief

Mon Aug 3 06:07:27 PDT 2015

Eric, one more point -- and thank you for your kind reference to our  
briefing.  While I prefer taking an originalist view, one should brief the  Court 
to attract the 5 Justices you need.  There is no doubt that to do  that you 
need to show that your position will benefit society in ways the other  
side won't.  I wish originalist arguments would be sufficient, but I live  -- 
and practice law -- in the real world.  Jim

In a message dated 8/3/2015 9:00:26 A.M. Eastern Daylight Time,  
JBoppjr at aol.com writes:

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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