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Balkinization Symposiums: A Continuing List                                                                E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Reply to the Electoral College Symposium
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Monday, January 25, 2021
Reply to the Electoral College Symposium
Guest Blogger
For the Balkinization Symposium on Alexander Keyssar, Why Do We Still Have the Electoral College? (Harvard University Press, 2020), and Jesse Wegman, Let the People Pick the President: The Case for Abolishing the Electoral College (St. Martin's Press, 2020). Jesse Wegman I hope you will forgive my extremely belated response to
this excellent and thought-provoking symposium. I read the contributions when
they were published, and I intended to write my response immediately. At the
latest, I thought, I would write immediately after Election Day, when the
Electoral College would no longer be the issue of the day. Alas. As the past few months of absurdity, instability and
violence have unspooled, I’ve been alternately horrified and gratified that the
Electoral College stayed at the center of the national debate for so long —
giving Americans a better opportunity to absorb the depth of its complexities,
its inequities and, especially this year, its vulnerabilities to
mischief-making. And so while it’s hard to take pleasure in any sequence of
events that resulted in a loss of life, I do feel like the nation had a unique
opportunity to give extended consideration to a topic that so often suffers
from only a brief quadrennial flurry of feeling. I am also so honored, and grateful to Jack Balkin and to the
symposium’s contributors, to have my book included in a deep and wide-ranging
discussion on one of my favorite legal blogs. This, for me, is as meaningful as
any review in a mainstream publication. As a journalist-cum-law
student-cum-legal journalist, I have long had a foot in two different but
connected worlds, and I am well aware of the differing methods of analysis,
narrative and argument in each. I admire all of you greatly, have read your
work, and have spoken to some of you at length about the issues at hand. In particular, I have been deeply influenced by Alex’s work
on the history of voting in America, and especially the emphasis on the role of
race and racial subjugation. I agree with the other contributors here that his
book is, as it was always destined to be, the definitive historical account and
analysis of the Electoral College and why it persists despite all the
dissatisfaction and dysfunction surrounding it. I am also happy that Sandy pulled in Ned Foley’s book, which
I agree is an essential work on the topic. Ned has been particularly generous
with his time and insights, both while I was working on the book and in the
past year, as I have written about electoral quirks like the “blue shift,” his
term for the phenomenon that (as he rightly predicted) played a major role in
the tumult and discord following the 2020 election. Given the nature of the expertise of those involved in this
symposium, I appreciate that it can be hard to talk about a book like mine and
books like Alex’s and Ned’s in the same breath. As Jack Rakove wrote, they are “very
different books,” written in different styles and aimed at different audiences.
I realize also that it can be frustrating when journalists like me boil down,
sometimes to the point of oversimplification or elision, complex and nuanced
legal and historical points. So I accept, with perhaps a touch of envy, Jack Rakove’s
observation that, for readers of this blog, Alex’s book has a “real value” that
mine does not. I would take some issue with his characterization of my book as
“snappy,” but I readily admit that it is aimed at a broad and general audience,
and thus necessarily had to streamline many of the complex and conflicting
details that Alex and Ned so ably focused on. (I also agree with Sandy that
both Alex and Ned are superb writers.) To that end, I take pride in having written a book “replete
with short sentences, brief paragraphs, and bursts of rhetorical questions,”
because as a wise elder writer once told me, the easiest thing a reader can do
is stop reading. The bottom line is that all of these books serve a purpose,
and in doing so I believe they complement rather than conflict with one
another. With that out of the way, I will address some of the
recurrent themes I saw in these contributions. One of the main criticisms of my
book was that I was too supportive, and perhaps too credulous, of the popular
vote interstate compact plan. Jack was skeptical about its ability to survive a
Compact Clause challenge. As a political-judicial matter, he might well be
right. But I think he is a bit too dismissive of John Koza’s analysis, however
non-professional, of the jurisprudence on this issue. For instance, Koza says that there is no infringement of
federal sovereignty because state legislatures have plenary authority to choose
the method of appointing their electors. In response, Jack writes that, “because
the efficacy of the whole scheme requires legally binding interstate
cooperation, that line of argument does not reach the real point of
contestation.” My question here, and it’s not a rhetorical one: Isn’t this the
definition of an interstate compact? And if it is, what argument is there that
any compact could evade the consent requirement? Again, I am not saying that
this particular Supreme Court would not be likely to require consent in this
case (indeed, in my book I quote Koza speculating to that effect) — only that I
don’t think the argument to the contrary can be so readily dismissed. (Of
course, in a Democratic-controlled Congress, it’s possible that consent could
be tacked onto HR1/S1, although that, like so much else, would probably require
a reform if not abolition of the filibuster.) I agree strongly with Jack’s points regarding what the
American public at large needs to comprehend about the current system if we’re
to have any hope of reforming it. First, a renewed emphasis on political
equality, the articulation of which (as Guy Charles put it so well at Larry
Lessig’s Electoral College symposium in October 2019) has been at the heart of
all major expansions of the franchise. Second, the essential point that we do not behave as
state-based actors when voting for president (or, as is becoming increasingly
clear with the decline of ticket-splitting, in nearly any other election at any
level). In retrospect, I think Jack is right that I could have spent more time
on this observation, because it eviscerates so much of the
“big-city/small-state” mythmaking that we currently hear in defense of the
existing Electoral College system. Sandy makes an excellent point: the difficulty, “even in the
best of systems, to achieve closure where a given public policy problem
includes more than two possibilities.” This is surely a bigger obstacle to reform than I gave it
credit for, although to some extent my goal in writing the book was primarily
to generate broader engagement with the topic among the public — because when
energy and timing line up (rare, yes) it can overcome a lot. Sandy also flagged a very important point that I wish I’d
made more explicit: that “the ‘rational choice’ of those in power is as much to
minimize the turnout of one’s political opponents as to generate turnout from
their supporters, especially, of course, if one suspects that one would lose if
everyone in fact turned out in a fair and open election.” This explains why,
for instance, an Electoral College system inhibits rather than encourages
expansion of the franchise, regardless of the role of racism and sexism and
classism. (I.e., how much sooner might we have reformed the system if there was
an actual electoral cost to disenfranchising large groups of people? In theory,
Section 2 of the 14th Amendment was supposed to solve that problem, but we know
how that has turned out.) I take some issue with a couple of Sandy’s points. First, in
discussing Chiafalo v. Washington he writes, “the Court’s unanimous decision
was a travesty of what several of the justices claim to care about, i.e., ‘original
intent,’ however defined. As Hamilton made crystal clear in Federalist 68,
perhaps the principal defense of the electoral college was precisely that the
electors, as leaders of the political community, would protect the public from
a demagogue in the presidency. They would serve as an indispensable filter
against someone clearly unsuitable to hold the office. The Court was
stunningly indifferent to retaining that possibility.” As we know, Hamilton’s
language in Federalist 68 is not dispositive on the generally-understood
purpose of the Electoral College at the time. Even if it were, however, I’d
suggest he is in a sense estopped from making that argument, because of his own
letter to James Wilson on January 25, 1789, in which he suggests a way to
ensure Washington’s victory by gaming the electoral vote in precisely the
manner he had just ensured the American people the Electoral College was
designed to prevent. In other words, I think one could reasonably argue that
the Court was, in fact, honoring the ‘original intent’ of the College, which
(as Franita rightly emphasizes) has always been about politics. The other quibble I take with Sandy is his concern regarding
states reneging from the compact if the political winds shift. He asks why
California electors would vote for Trump (or Texans for Biden) if they were
member states and the compact were in effect. Unless I’m misunderstanding his
point, this misconstrues how the compact works. Under its terms, a member state
sends the slate of electors pledged to the candidate who won the most votes in
the country. By definition, those electors want to vote for that
candidate. They will experience no cognitive dissonance in doing so. The real
threat comes from a state legislature that might try to change the rules when
it sees things turning south — and of course it could do that before July 20 of
election year, at which point the compact stipulates a blackout period lasting
until the inauguration. I realize there are several points along this path
where states might try something sneaky, or where there would be litigation
under the Article II powers, but that’s a different matter from whether
electors themselves would be obligated to vote for someone they didn’t support. Anyway, Sandy is surely correct that all of these debates
are largely moot until the compact gets anywhere near 270 electoral votes’
worth of member states. Finally, if I came off as blasé about the genuine concern
about non-majority winners, that’s my fault. I did spend a few pages discussing
the benefits of ranked-choice voting as a solution to this problem, but perhaps
that deserved even more attention given the likelihood of multiple candidates
and parties under a popular-vote election. (Of course, given Trump’s threats in
recent days, we might soon see that scenario even under the current system.) Franita Tolson and Ned Foley both rightly point a bright
light at the 12th Amendment and its ongoing significance to our debates over
how we elect the executive. This is one issue I do wish I had spent more time
on. As Franita writes, “The debate over the Twelfth Amendment reveals that
there is nothing about our system that requires democracy.” This is such a good point and one that I do think I elided
in my own somewhat-rosy articulation of American history and the march toward a
more inclusive democracy. She writes, “majoritarianism is not a term that is
inherently democratic or plutocratic or anything really. Who constitutes the majority is defined by
state law, and by extension, partisan politics.
The possibility of anti-democracy within our system is a feature, not a
bug, of the Electoral College.” Point well taken. I am pleased that Franita picked out one particular thread
of my book, the attempt to capture “the conflicting ideals of the founding
generation”—and especially the James Wilsons of the world. I was fascinated by
his personal history and intellectual/political evolution, which I could only
very quickly cover in a short book, and while he was of course as complicated
and contradictory as any human, the degree and depth of his faith in the
popular will was unusual, and worthy of more attention as we resurrect and
re-resurrect our founders in our attempts to understand the deeply imperfect
system they designed. As I said above, I am in complete agreement with Ned that
ranked-choice voting might, if broadly and properly implemented, be the answer
to many of our electoral maladies, not just at the presidential level but at
all levels of political office. To the extent that he sees a route forward for the adoption
of RCV through state ballot initiatives, I do harbor a great fear regarding the
fate of AZ Redistricting Commission in a Supreme Court where Brett Kavanaugh,
of all people, represents the swing vote. The chief justice was, as we know,
exceedingly hostile to the majority opinion in that case, and it is hard for me
to see how it survives even a first run-in with the newly-weaponized hard-right
bulwark at One First Street. If that comes to pass in the next term or two, I
am deeply concerned for the future of basic remedies for representational
inequities promulgated by self-interested politicians and parties. Anyway,
that’s a debate for another symposium. For now, I want to say thank you again to the scholars and
thinkers who participated in this symposium, and who were so generous with
their time and analysis of this critical topic. I feel lucky to have been
included and I look forward to speaking with you all in the coming months and
years.
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Books by Balkinization Bloggers Linda C. McClain and Aziza Ahmed, The Routledge Companion to Gender and COVID-19 (Routledge, 2024) David Pozen, The Constitution of the War on Drugs (Oxford University Press, 2024) Jack M. Balkin, Memory and Authority: The Uses of History in Constitutional Interpretation (Yale University Press, 2024) Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023) Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023) Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022) Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022) Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022) Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021). Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021). Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020) Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020) Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020) Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020). Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020) Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020) Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020) Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019) Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018) Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018) Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018) Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017) Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017) Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016) Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015) Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015) Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015) Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014) Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014) Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013) John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013) Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013) Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013) Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013) James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013) Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013) Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012) Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012) Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012) Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012) Jack M. Balkin, Living Originalism (Harvard University Press, 2011) Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011) Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011) Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011) Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011) Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010) Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010) Balkinization Symposium on The Decline and Fall of the American Republic Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010) Mark Tushnet, Why the Constitution Matters (Yale University Press 2010) Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010) Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009) Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009) Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009) Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009) Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009) Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008) David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007) Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007) Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007) Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006) Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |