[EL] Evenwel brief
JBoppjr at aol.com
JBoppjr at aol.com
Mon Aug 3 07:06:56 PDT 2015
Thank you Eric and Marty for this lively originalist debate. This is what
it should be all about but sadly it is just more fun for Justices to rule
the world for our own good. Now I have to feed my family. Jim
In a message dated 8/3/2015 9:59:35 A.M. Eastern Daylight Time,
lederman.marty at gmail.com writes:
In fairness to Jim, Citizens United and Austin are not about "writing
checks to candidates" -- they are about whether Congress can insist that
corporations use one source of funds rather than another to pay for their own
election-related advertising.
On Mon, Aug 3, 2015 at 9:56 AM, Eric J Segall <_esegall at gsu.edu_
(mailto:esegall at gsu.edu) > wrote:
Jim, in that piece, I am not taking a position on whether CU is right or
wrong. I am only saying that for Thomas and Scalia to vote to strike down
every campaign law they have seen without any real search for original
meaning is inconsistent with their oft-stated admonition to others that text and
history (and for Scalia precedent) is all there is.
I disagree with you about the text because obviously “no” doesn’t mean “
no.” Perjury, bribery, treason, yelling fire in a crowded theater, time,
place and manner restrictions, obscenity, etc., are all examples of speech
that can be regulated by the government. Writing checks to candidates does
not count as speech any more or I guess less than those other examples. The
issue is always what interests the government has to regulate that speech.
Thanks for engaging with my essay.
Best,
Eric
From: _JBoppjr at aol.com_ (mailto:JBoppjr at aol.com) [mailto:_JBoppjr at aol.com_
(mailto:JBoppjr at aol.com) ]
Sent: Monday, August 03, 2015 9:48 AM
To: Eric J Segall; _lederman.marty at gmail.com_
(mailto:lederman.marty at gmail.com)
Cc: _law-election at uci.edu_ (mailto:law-election at uci.edu)
Subject: Re: [EL] Evenwel brief
Eric, I cannot begin to respond to your well argued scholarship on this
except on one point, campaign finance, to illustrate by view.
The problem liberals have here is that the text and the plain meaning of
the First Amendment is so clear and definitive -- "Congress shall make no
law . . . abridging the freedom of speech, etc." -- that they try to
undermine the clear words of the text, as you did, by reference to history. You
ask: did the Framers think -- at that time --that the First Amendment
conferred speech rights on corporations. If they didn't think that -- and of
course they had no view on this since corporations were just being invented --
then you say the First Amendment does not protect them and CU was wrong. (I
hopefully summarize your point that I invite others to examine to
determine for themselves.)
I just don't think the answer to this is that hard or requires much ink
(you also fault Scalia and Thomas for not wasting enough ink and trees on
this). The text is absolute and has largely been read that way up until
Buckley. And of course, the plain text is not undermined by new ways of
speaking -- like by newly invented groups, hey how about LLC's, or by new means
of communicating -- like by email and web sites -- that the Framers didn't
think about either. I think this is why the text is so absolute -- all
speech is protected regardless of the means or group speaking. (The 14th
Amendment is different, it protects the rights of "person(s)", "citizens", etc,
but the 1st protects activities, broadly defined, "speech," "press", etc.)
Anyway, the debate we are having is where it needs to be in my view since
your central point is whether Scalia and Thomas's views are consistent with
a proper understanding of the Constitution. This is light years from
judges just imposing their new and improved version of the Constitution,
because they like it better, on us all. Jim
In a message dated 8/3/2015 9:07:43 A.M. Eastern Daylight Time,
_esegall at gsu.edu_ (mailto:esegall at gsu.edu) writes:
It is simply false that "conservatives .... largely agree to, a more
originalist view, regardless of the outcome to their personal policy
preferences," than liberals." They may "advocate" such a view but they do not act on
it.
Sorry for the self-promotion, but here:
http://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=6105&context=law_lawreview
Best,
Eric
____________________________________
From: _JBoppjr at aol.com_ (mailto:JBoppjr at aol.com) <_JBoppjr at aol.com_
(mailto:JBoppjr at aol.com) >
Sent: Monday, August 3, 2015 9:00 AM
To: Eric J Segall; _lederman.marty at gmail.com_
(mailto:lederman.marty at gmail.com)
Cc: _law-election at uci.edu_ (mailto:law-election at uci.edu)
Subject: Re: [EL] Evenwel brief
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_ (mailto: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)
[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_ (mailto: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_ (mailto: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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