[EL] Evenwel brief

Mon Aug 3 11:45:50 PDT 2015

I don’t quite agree that no one is relying on textual arguments.

One thing is absolutely clear from the text of both Article 1 and the 14th Amendment. In the design of the House of Representatives as representative of the people, the apportionment base was population, explicitly not eligible voters, however measured.  There is no direct textual base for requiring the same (or any) apportionment base within the states, or in other representative bodies, but both Westbury and Reynolds are clearly referencing that theory of representation when they said "our Constitution's plain objective . . . of making equal representation for equal numbers of people the fundamental goal."

It is also clear from the text of the 14th amendment that the Equal Protection Clause applies to all persons, not just citizens or those eligible to vote.

There may not be a textual basis for the status quo, but the position advocated by the Evenwel plaintiffs is about as anti-textual as it is possible to be. They argue that the theory of representational government that is required in the apportionment clause of the 14th Amendment is forbidden in other representative bodies (if it makes a difference) because the Equal Protection Clause of the 14th Amendment, when applied to representation, can only protect the rights of eligible voters.

Going somewhat beyond textual arguments, the right directly at stake here is the right to  representation, not the right to vote. The only reason the right to vote is impacted by malapportionment is that a vote is devalued or debased when it cannot be used in the choice of equal representation for equal numbers of people. That is the clear basis for Westbury and Reynolds despite some confused language. Burns pulled back somewhat (and explained the confused language) by saying that states were not required to follow the same theory of representative government, but the bottom line is the same. A state must choose an apportionment basis which reflects a legitimate theory of representation, and Equal Protection is violated and the right to vote is debased if a voter cannot vote for the level of representation he is entitled to by the selected apportionment base, consistently applied. The 9th circuit in Garza did not contradict Burns but, following the lead of the California Supreme Court, found that the choice of eligible voters as the apportionment base was not legitimate in situations where, as in Los Angeles County, that choice led to a systematic reduction in representation for certain protected classes of already disadvantaged residents, especially given a finding of intentional discrimination against those residents.

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Marty Lederman
Sent: Monday, August 03, 2015 4:29 AM
To: Jboppjr
Cc: law-election at uci.edu
Subject: Re: [EL] Evenwel brief

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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