[EL] Evenwel brief

Mon Aug 3 06:11:37 PDT 2015

Of course.  I hope I did not suggest otherwise.  Jim

In a message dated 8/3/2015 9:09:11 A.M. Eastern Daylight Time,  
esegall at gsu.edu writes:

Thanks Jim. I think it is fair to say that I advocate the "five votes" of  
the Supreme Court as much as anyone..... 

Best, 

Eric

____________________________________

From: JBoppjr at aol.com  <JBoppjr at aol.com>
Sent: Monday, August 3, 2015 9:07  AM
To: JBoppjr at aol.com; Eric J Segall;  lederman.marty at gmail.com
Cc: law-election at uci.edu
Subject:  Re: [EL] Evenwel brief  

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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