[EL] Evenwel brief

Mon Aug 3 07:27:47 PDT 2015

Or, in the case of SuperPacs, to write checks ( contributions) to entities supporting or opposing candidates-- often today only one candidate, and with the SuperPac established by the candidate or his/ her top aides.
Trevor Potter

Sent from my iPhone

On Aug 3, 2015, at 10:25 AM, Marty Lederman <lederman.marty at gmail.com<mailto:lederman.marty at gmail.com>> wrote:

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<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

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________________________________
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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