[EL] Evenwel brief

[Marty Lederman]

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> 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]
> *Sent:* Monday, August 03, 2015 9:48 AM
>
> *To:* Eric J Segall; lederman.marty at gmail.com
> *Cc:* 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 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
> <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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>
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