[EL] Evenwel brief

[Marty Lederman]

Jim:  Surely you don't believe this -- that the Free Speech Clause "is
absolute and has largely been read that way up until Buckley,"  Only one
Justice, ever (Justice Black) has ever articulated such a view and even
that Justice, of course, hardly applied it rigorously.

It's not even true -- no one of any seriousness has ever argued -- that "all
speech is protected regardless of the means or group speaking,"
*particularly* if by "protected" you mean not only subject to some
constitutional solicitude, but absolutely immune from all regulation.  The
exceptions to such a "rule" would run a mile long.

The Free Speech Clause does not, of course, say that "Congress shall make
no law . . . abridging the freedom of for-profit corporations to use
treasury funds, rather than PAC funds, to subsidize election-related
speech."  Perhaps that's how the First Amendment should be interpreted;
perhaps not.  But one thing's for sure -- the text does not compel, or even
point to, the result in either *Citizens United *or *Austin*.


On Mon, Aug 3, 2015 at 9:47 AM, <JBoppjr at aol.com> wrote:

>  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 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 <JBoppjr at aol.com>
> *Sent:* Monday, August 3, 2015 9:00 AM
> *To:* Eric J Segall; lederman.marty at gmail.com
> *Cc:* 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 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>
> 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> 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>
>> 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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