[EL] Evenwel brief

Mon Aug 3 12:26:02 PDT 2015

4 don't at (or better said, only when it suits their policy outcome)  and 
two don't sometimes.  Only 3 try to do so consistently.   Bummer.  Jim

In a message dated 8/3/2015 2:46:03 P.M. Eastern Daylight Time,  
ely at compass-demographics.com writes:

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_ (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.

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20150803/46e8f49b/attachment.html>