Balkinization: What is "essential" about the Electoral College?

Comments:

For the most part, I'd argue that the "essential" features are the broad principles Prof. Balkin emphasizes in his version of originalism. For the other features, I'd emphasize Madison's majoritarian approach to whether laws are consistent with the Constitution, with some nuance in related considerations:

1. The issue was of notable importance and widely debated nationwide. George Washington once said that “It is on great occasions only and after time has been given for cool and deliberate reflection that the real voice of the people can be known.”
2. Congressional votes on the issue were considered, deliberate, and reasoned.
3. The law was reaffirmed, explicitly or implicitly, over a substantial period of time (25 years in the case of the Bank) by different majorities.
4. Both the President and the Supreme Court agreed with the law (or at least the Court didn’t disagree).
5. The law was consistent with the text of the Constitution and settled practices in related areas.
6. State laws were consistent with it.
7. The Congress which passed the law met the fundamental principles of republican government, such that the democratic process itself was fair and fully inclusive, or else the lack of such inclusiveness had no obvious impact on the law. To explain what I mean here, consider the situation during the Jim Crow era in which white segregationists prevented blacks from voting, while passing laws establishing a system of white supremacy. Such votes couldn’t be used to “justify” segregation nor to interpret the Constitution as permitting white supremacy, for no other reason than that the actions of the white majority subverted the voting process by excluding those most affected. If the votes aren’t both “democratic” and “representative”, they can’t be cited as evidence of popular understanding.

When these conditions, or most of them, but particularly #7, are met, in my view the nation has adopted a Constitutional precedent. An oath to uphold the Constitution then serves as an oath which includes this understanding.

# posted by

Mark Field : 9:33 PM

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# posted by

Joe : 9:59 PM

State and federal officials, down to notaries in New York, take a constitutional oath or affirmation. To me, it is a bit of ceremony that underlines a person is now under the jurisdiction of the federal constitution in some sense. Ceremonies have some value in human society. Some sneer at them but a wedding ceremony with a ring seems of value.

Mark sets forth an ideal set of criteria. There is no crystal clear lines here though there tends to be some basic agreement. For instance, the electoral system is not fully "fair and fully inclusive," especially until the 1960s at least. But, there were "constitutional precedent" before then. All the same, it's an impressive list.

Things like "essential" and "incidental" tend to be hair-splitting too often. A bottom line judgment of mine is that the constitution we are expounding is a living thing and development over time is important to clarify things not crystal clear like two senators or whatever. This is the "Constitution" one swears and affirms to uphold. Also, one is promising to uphold basic things that most agree upon including the rules of the game for various officers.

Again, Mark sets forth some criteria to help along there. I'll move past "Madisonian" myself. I think the criteria stand on their own.

# posted by

Joe : 10:02 PM

I agree with Joe's penultimate paragraph.

# posted by

Mark Field : 10:15 PM

I should add to this that it's not just oathtakers who bind themselves to the living Constitution. I think, relying on Madison, that we all do. I can explain his reasoning by summarizing a lengthy exchange of letters between him and Jefferson. I'll try to make this as brief as I can.

Jefferson began by arguing, in a famous phrase, that “the earth belongs ... to the living”. He emphasized that “the dead have neither powers nor rights over it”. The conclusion he drew was the living could not bind their heirs to debts which they (the living) incurred. If they did that, said Jefferson, that would allow the dead to control the living.

It’s important not to carry Jefferson’s principle too far. He did not mean that the living could destroy all the property now existing or even just waste it. I just left out the words in which he made that qualification.

Jefferson did mean, though, that the same principle should be applied to entire generations. “What is true of every member of the society individually, is true of them all collectively, since the rights of the whole can be no more than the sum of the rights of individuals.” He gave an example: suppose Louis XVI, then King of France, borrowed money to throw lavish parties, promising to pay it back after he died. The unfairness of this was obvious – the King got to waste the money and his children got stuck with the bill. The conclusion Jefferson drew was that one generation could not contract debts which had to be paid by succeeding generations. Every generation, he said, must pay for itself.

Madison disagreed. He didn’t and wouldn’t deny that the People always had the ultimate right to change the system, by revolution if necessary; they were sovereign and that’s what sovereignty means. What he wanted to do, though, was to distinguish between those (hopefully) rare occasions when radical change akin to revolution was necessary and the ordinary course of government.

Madison pointed out that Jefferson’s theory failed to account for improvements. If those now dead made the world a permanently better place, it was only fair that their descendants pay something for that improvement. “The improvements made by the dead form a charge against the living who take the benefit of them.”

# posted by

Mark Field : 10:39 PM

Jefferson didn’t stop with applying his theory to debts, however. He extended it to include laws and constitutions:

“On similar ground it may be proved that no society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation. They may manage it then, and what proceeds from it, as they please …. They are masters too of their own persons, and consequently may govern them as they please. But persons and property make the sum of the objects of government. The constitution and the laws of their predecessors [were] extinguished … in their natural course with those who gave them being. … Every constitution then, and every law, naturally expires at the end of [a generation]. If it be enforced longer, it is an act of force, and not of right.”

Madison disagreed with this too. He made a number of practical objections which I don't need to detail. He argued, instead, that in order to avoid these practical difficulties people implicitly agree to the Constitution and the laws:

“I find no relief from these consequences, but in the received doctrine that a tacit assent may be given to established Constitutions and laws, and that this assent may be inferred where no positive dissent appears."

Note, though, that Madison didn’t directly challenge Jefferson’s radically republican assertion that each generation got to decide for itself. What he did was shift the implementation of that principle from formal consent to implied consent. In essence, Madison said that we should assume that people consent unless they make it clear that they do not. This also makes sense. As long as government is reasonably free, and people know they have the right to dissent, we all understand that we somehow consent when we fail to dissent.

As with Jefferson, it’s important not to carry Madison’s assumption too far. I have no doubt he’d agree that some people might give explicit consent. Even in cases of implied consent, he’d also agree that individuals might dissent on some issues, and, more important, that the People generally can change the accepted practices. His point was a general one, not intended to cover every single case. In general, and as a group, people tacitly agree; this places on them the obligation to make their dissent known if they don’t agree and to convince their fellow citizens if they want to make a change. That’s the natural consequence of their status as the holders of sovereignty and the voters in a representative, majoritarian system.

Madison’s position is still republican, as is Jefferson’s, because it allows for such dissent. It also leaves open the possibility that a new generation can and will decide to make a fundamental change in the society. Madison, as usual, was trying to balance competing objectives. He himself said in Federalist 14 that it was “the glory of the people of America, that, whilst they have paid a decent regard to the opinions of former times and other nations, they have not suffered a blind veneration for antiquity, for custom, or for names, to overrule the suggestions of their own good sense, the knowledge of their own situation, and the lessons of their own experience….” He wanted respect for the Constitution, even veneration (a term he used in Federalist 49), but not blind or unthinking worship. On the other hand, too frequent appeals to the People, as Jefferson wanted, though justified by theory because the People are sovereign, would be de-stabilizing in practice. Until a change happens, then, his point was that we should simply assume that there is an (implied) agreement to keep the current system.

# posted by

Mark Field : 10:50 PM

That still leaves open the key question: What are they [implicitly] consenting to? Let me first try to given an answer which I think Madison would support, and then add some thoughts of my own.

We can be very confident that Madison did not mean that people consent only to the original constitution. He specifically argued to Jefferson that the application of Jefferson’s theory to property must include improvements. Thus, we know that Madison would naturally expect the implied consent to include amendments to the constitution, new laws, etc.

This brings us back to Madison's change of view on the Bank. Madison respected the principle of majority rule. He personally thought the Bank was unconstitutional, but the majority of his fellow countrymen obviously disagreed. More significantly, they demonstrated that disagreement by consistently treating the Bank as Constitutional over a long period of time. Madison deferred to that majority – not a temporary one, but one which persisted over a period of 25 years – as settling the question of constitutional interpretation.

There’s every reason to expect that Madison would understand “implied consent” to include such later-decided issues. As he pointed out in Federalist 37, “All new laws [including Constitutions], though penned with the greatest technical skill, and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications.”

When Congress passes a new and controversial law, or when the Supreme Court changes its mind on an important issue, those changes can become part of the accepted understanding of the meaning of the Constitution, provided that the factors I mentioned above are satisfied. The consequence is that when we give our implied consent to the Constitution, we consent to the laws and Constitution as currently understood, subject to the possibility for change using the accepted processes.

That cumulative, developed meaning may be very different than it was 100 years before. Our collective exercise of sovereignty may be less dramatic or obvious than that of the Framers, but we -- all of us -- are perpetually ratifying an evolving Constitution.

# posted by

Mark Field : 11:01 PM

I don't think I really understand this concept of "incidental" vs "fundamental" features of a Constitution. There's stuff that's written down. You have to ask what it means. That meaning doesn't change until the text is formally amended. That's essentially what it means to have a written constitution!

I don't like implied changes. The Constitution isn't just the government's, it's also the people's. In a fundamental way, it's MORE the people's. Suppose the government changes practice. Is this because the people want practice changed? Or is it because the government doesn't care that they don't, and the people don't have enough leverage to force the government to desist?

Can constitutional change come via adverse possession? I think much of it has.

The bottom line for me, as an originalist, is this: You want me to believe that the public wants a change to the Constitution? Prove it, by going through the formal amendment process. The ratification of that amendment is your proof.

If you don't bother with the formal amendment process, I see that as evidence that you don't actually believe the public agrees to your change. That you think you'd fail in the effort.

# posted by

Brett : 11:42 PM

The Jefferson/Madison stuff is interesting enough but of limited relevance.

As to "change," what does that mean? That is a basic debate. The original understanding, to the degree that is a thing, such as citing Marshall, Madison et. al., includes a changing understanding of specific applications in part based on experience. It includes a developing understanding of "reasonable" searches or "due process of law" in particulars. This is not amending the Constitution. It is part of it. We are following the text. I don't think "implied" or "explicit" affects the conversation there too much either.

You don't need an amendment to determine that equal protection in 2020 includes treatment of trans people based on developing understanding of the human condition not present in 1868. A basic concept was set in the text. It was not amended. Equal protection is the text. Not "how we specifically understand the meaning of sex and gender." If we care about originalism, the framers were part of the age of reason. They understood specifics here would change over time though the same basic principles stay true. This might overlap with "essentials" somehow, to be fair to the OP.

If you read what the people said then, which "an originalist" would seem to care about, they understood this. This is part of why specifically Congress was given power to pass legislation to enforce later amendments. Legislatures pass laws per current conditions that might only be faintly understood by people in 1868. See, e.g., McCulloch v. Maryland, which was reaffirmed as a principle in the later part of the 19th Century by people like Justice John Harlan.

Of course, there is a continual dispute on what exactly is the contours of all of this so, e.g., the New Deal is cited by some specifically as when the Constitution sorta died though it really didn't. OTOH, certain things are more concrete. Two senators per state. Length of terms. The basic core of religious liberty etc.

Amendments can also be used to write in red ink things open to some debate. John Bingham thought the 14A was necessary to pass certain civil rights acts while others did not. The original BOR was also somewhat of that caliber. Without an amendment there, things are more open to flux. This is why, e.g., the ERA not being ratified mattered. It took decades to develop things and we still are not totally firm on certain things in the eyes of some. Like the 16th Amendment, the ERA would put things in red ink more.

I think originalism is not good means to interpret the Constitution. It is not somehow spelled out that is the way to do it. It is not in practice a useful approach. And, even the alleged values (such as more restraint) in practice don't work. But, if one does follow originalism, rejecting Marshall, Madison et. al. on how clauses have specific meanings that develop over time is a tad ironic. But, that is how originalism tends to work. Selectively.

# posted by

Joe : 12:30 AM

I think it is debatable, to underline one point, that the consent is only "implicit."

It seems apparent by this point what we are doing. At some point, after so many years of things being done, we can grant people are aboveboard consenting. People recognize a certain type of constitutional understanding occurs. They vote for people with the intention and knowledge they will appoint certain judges with certain understandings or public officials generally with certain understandings.

The line between "implicit" and "explicit" here seems hazy. Again, there is a dispute here on the proper understanding. But, it is being done explicitly in some fashion. And, again, it is part of our constitution.

# posted by

Joe : 12:43 AM

Great philosophical questions. The answer is quite obvious:

The constitution, dictates also, how to amend it. So, taking oath, includes the future amendments whatsoever.

Also, the constitution, dictates, that courts, deal with federal issues or controversies. So, taking oath also includes it(future jurisprudence).

And, one may argue, that since the vote for the president, and vice president, are not popular votes ( in the plain meaning of it) it means in fact, that the framers, didn't trust the discretion of the people. But, rather the discretion of the electors. As such, they are free agents ( in the plain meaning of it). Free agents, means, that they may change their mind, in any given moment, due to changing circumstances. Otherwise, they are not free, having no free will. But, bound by one choice. One predetermined choice, is not free choice one may argue.

Thanks

# posted by

el roam : 7:02 AM

I agree with Joe's 12:30 comment, except the first sentence. :)

I also agree that the line between implicit consent and express consent can be rather vague. For those who take the Oath, I'd probably agree that their consent is express. Most people, though, probably don't think much about these issues and for them I'd say it's implied.

Brett apparently disagrees not only with Jefferson and Madison both, but with the very idea of progress. And no, pointing to an amendment clause that doesn't even offer the pretext of democratic legitimacy isn't an argument for why the sovereign people living today have to give up their rights to those who lived over 2 centuries ago.

# posted by

Mark Field : 8:50 AM

What I believe in is "change". It's not guaranteed to be progress, indeed actual progress is a continual fight against entropy, and entropy is sneaky, disguises itself as progress.

You want to do things the easy way? Yeah, that's embracing entropy, entropy is always the easy way.

And, yes, that second paragraph looks to me like an admission that you're going the 'living constitution' route because you know the public wouldn't ratify the changes you want.

# posted by

Brett : 9:07 AM

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# posted by

Bart DePalma : 9:17 AM

Sandy: Keith Whittington, an avowed originalist, agrees that the "original understanding,"...was that electors were to be "trustees" charged with selecting the "best persons" to be president and vice-president...But, says Whittington, it became clear by the early 19th century that, contrary to the wishes of the Framers, we had developed a political party system, and expectations as to the behavior of electors changed.

So the obvious question, to a Whittingtonian originalist, is whether this constitutes a "change" in constitutional meaning, or whether it counts as a faithful rendition of original meaning[?]

if one agrees with Whittington, does that have consequences for the essayists Prof. Barzun is discussing? I.e., is how we select presidents, including the original conception of independent electors, part of the constitutional "essence," or is it merely an "incidental feature," similar, say, to Inauguration Day?

And, more to the point, how exactly does one determine what is "essential" or "incidental"? Quite literally, who knows?

Of course, there is no way to determine what is "essential" or "incidental"? Barzun's argument is a circular sophistry for legitimizing judges rewriting the Constitution at will in violation of their oath - a judge is oath bound to enforce the Constitution, but, the Constitution remains the same if the judge only changes its "accidental properties," and the judge determines which provisions are "accidental properties."

How does this sophistry apply to Whittington's view of the electoral college?

To start, Whittington's view is wrong. There was no single or even majority "original understanding" among the drafters or ratifiers of the Constitution as to the actual execution of electoral college in choosing the POTUS.

The vague text provides little guidance in this regard and effectively punts the execution of choosing the POTUS to the state legislatures, who are free to hold elections and are expressly granted the power to choose electors "as the Legislature thereof may direct." The state legislatures eventually chose to have popular elections for POTUS and to make electors agents of the state required to vote for the candidate who won the state or districts.

The electoral college is not "incidental" and thus subject to change absent amendment. Even if this were so, the states are not changing the Constitution. Rather, state legislatures are exercising the broad powers granted by the document.

# posted by

Bart DePalma : 9:19 AM

"And, yes, that second paragraph looks to me like an admission that you're going the 'living constitution' route because you know the public wouldn't ratify the changes you want."

Shuffle and dodge all you like, but Art. V has nothing to do with "the public" ratifying. It takes real chutzpah to use democratic legitimacy as an argument for a process which makes no pretense of that.

I also think you need a refresher on entropy, but while that might be interesting it's not very relevant.

# posted by

Mark Field : 9:22 AM

"You have to ask what it means. That meaning doesn't change until the text is formally amended."

This is unworkable for a lot of the Constitution, which purposely and explicitly uses language that calls for a principle whose outcomes should change when applied to changing knowledge and situations (due process, unreasonable, cruel and unusual, etc.,). It could have been imminently reasonable to search via a piece of paper one had in his hand at the time of an arrest but imminently unreasonable to search someone's cell phone or Apple watch contents, for example.

# posted by

Mista Whiskas : 10:17 AM

"the power to choose electors "as the Legislature thereof may direct.""

This power can easily be read to apply only of how electors are chosen ("Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors"), saying nothing about any power over the electors once chosen. In fact, the unqualified language "The Electors shall meet in their respective states, and vote by ballot for President and Vice-President" suggests no limitations on the votes of the electors.

# posted by

Mista Whiskas : 10:23 AM

"You want me to believe that the public wants a change to the Constitution? Prove it, by going through the formal amendment process. "

One obvious problem with this comment is that the Amendment process requires a supermajority and then our current system requires an even greater supermajority within that supermajority (the amendment process favors the many sparsely populated states, many states are gerrymandered, etc.,). Getting 3/4ths of the current states to ratify an amendment means about 1/8th of the population can effectively block it (and this is to say nothing about the awful fact that a decent size number of citizens, those who live in our territories, get no say at all in the process).

# posted by

Mista Whiskas : 10:30 AM

Some quick math I did: in 1790 the smallest state population wise (Delaware) was 12 times smaller than the largest (Virginia). Today, Wyomonig's population is 67 times smaller than California's. It seems like it might be much easier for a smaller minority to block an amendment than when the Founding happened.

# posted by

Mista Whiskas : 10:36 AM

I agree with Mista Whiskas. It certainly looks to me like the states would appoint the electors, and then they'd exercise their own discretion. Rather like the Senators.

Twisting the power to select electors, into the power to dictate what they do once selected, is a living constitution move.

# posted by

Brett : 10:38 AM

"One obvious problem with this comment is that the Amendment process requires a supermajority and then our current system requires an even greater supermajority within that supermajority"

Common misunderstanding, IMO.

Imagine that there's an amendment with a modest majority support among the electorate. 55% of the voters favor it. If that support is uniformly distributed across the country, every last Senator, Representative, and state legislator, will find that a majority of their constituents favor it. Achieving a supermajority vote in the House, Senate, and of ratifying states will be very easy, even though the amendment is only moderately popular.

OTOH, imagine an amendment that is wildly popular locally, but not at all popular elsewhere. Say, an amendment immunizing everyone living in a coastal state from federal taxes. That's 30 states, and most of the country's population. But it would fail, because 20 states would oppose it.

Supermajority requirements for legislatures or states don't require supermajorities of the public. They test how widely distributed support is, not how intense.

# posted by

Brett : 10:47 AM

I would add that, while it's theoretically possible, if the states line up just right, (Think about Arrow's theorem here! EVERY voting system has a failure mode.) for a small minority of the population to block an amendment, historically this has never happened. If you look at the ERA, for instance, there was no such coalition of small states against it, the states for and against were almost perfectly representative in terms of population.

# posted by

Brett : 10:50 AM

I fact, I'd say that about the only way you would get that proverbial "17 least populated states" coalition coming into existence, is if you had an amendment that systematically discriminated against less populated states. In which case the failure of the amendment would actually be appropriate, in terms of legitimacy of action within a federation.

# posted by

Brett : 10:52 AM

Imagine an amendment that 35 states, from various parts of the country, ratifying it but the last three did not. And, even in the non-ratifying states, you have a chunk of people supportive, just not enough for the legislature to pass it. It won't take much imagination. The math in action will depend on the case. And, why 45% of Texas should be ignored because it isn't quite a majority also is somewhat unclear.

The strict test necessary to amend the Constitution somewhat clouds the conversation since again what is pushed against is part of the constitution. As the original parties recognized it to be as well as it is rationally and reasonably applied. This document has many components that develop over time. Again, the people at the time said as much. If an "originalist" doesn't care about that, what is the point except wordplay and pretending you are restrained by things when you aren't?

The strict test necessary does influence things. If things are very hard to change, it tends to be true (as it is true here) that things are flexible enough to work over time. This is as Karen Armstrong noted in a recent book true with religious scripture and (again for those who care) religious scripture was of special concern to the framers (at least up to the 15A). It also factors in when interpreting it in the courts since once the courts rule in a constitutional case it is harder to change. This was recognized by justices in the 1790s.

This is as Mark notes "constitutionalism" with the "living" modifier misleading since that is presence in each case. As to the text regarding the electoral clause, when even the killer Bs seem to disagree on the terms here, maybe we can say there is some lack of clarity, questions not quite answered as one person said. In such cases, the other Brett says a tiebreaker can be precedent especially if the alternative is "chaos." If it is crystal clear -- e.g., four year terms for presidents -- we are stuck with it. But, a lot of the language is not like that.

# posted by

Joe : 11:18 AM

Brett: Twisting the power to select electors, into the power to dictate what they do once selected, is a living constitution move.

Hardly. I am applying basic agency law.

The Constitution originally granted state legislatures the power to elect Senators.

Similarly, the Constitution granted state legislatures the power to appoint electors to elect the POTUS.

A principal-agent relationship is established by evidence of the consent of one person to allow another to act on his or her behalf. In this case, the Constitution is evidence the state legislature is the principal and the electors are the agents to elect the POTUS. Of course, the principal enjoys the power to instruct the agent how to vote.

# posted by

Bart DePalma : 11:38 AM

Instructing electors, (Or Senators) how to vote is kind of like calling forth spirits from the vasty deep; Sure, you can instruct them how to vote, so can any man, but do they have to vote as instructed?

I'm not aware that, prior to the 17th amendment, Senator were bound to actually follow such instructins.

# posted by

Brett : 11:45 AM

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# posted by

Bart DePalma : 12:07 PM

Brett: Instructing electors, (Or Senators) how to vote is kind of like calling forth spirits from the vasty deep; Sure, you can instruct them how to vote, so can any man, but do they have to vote as instructed?

The Senators and POTUS are officers of the federal government to whom the Constitution grants powers (including voting) to operate the government.

An elector is not an officer of the government and has no other duty apart from voting for the POTUS on behalf of the state "appointing" (not electing) them.

The only purpose for a state legislature to "appoint" electors to vote on its behalf instead of voting directly for POTUS is to give each state a number of votes equal to the number of it's Representatives and Senators.

# posted by

Bart DePalma : 12:08 PM

"55% of the voters favor it. If that support is uniformly distributed across the country, every last Senator, Representative, and state legislator, will find that a majority of their constituents favor it."

Let's begin by recognizing that 56% popular support in many states doesn't get you a legislative majority due to gerrymandering, disenfranchisement and such. Wisconsin, Virginia, etc., have shown this.

"In which case the failure of the amendment would actually be appropriate, in terms of legitimacy of action within a federation."

1. This isn't obvious. A federation need not block a supermajority of the federated states. That might be a protection for some of the states in the federation, but it also can be said to thwart the purpose and operation of the federation itself. What would be a better protection of the federated states is limitations on the federal government's powers and areas of legislation.

2. It's not obvious how much of a 'federation' we are. We had a Articles of Confederation, we rejected that and adopted a Constitution which, on its own terms, created a more perfect *Union* with a *general welfare* and *common defense.* I don't deny that states matter, they certainly do, but where we exist on a federation-nation continuum is debatable. Given that, we must be in some part as sensitive to the needs of the nation being thwarted as we are the needs of the states.

3. All of this assumes the idea of a federation or even a nation which has these protections for *states* is a defensible idea. For example, why would it make sense to protect *geographical* minorities but not, say, religious or ethnic minorities? There's certainly a far greater history here of the latter being oppressed by the relative majorities.

# posted by

Mista Whiskas : 2:56 PM

"I am applying basic agency law."

It's certainly not clear that agency law applies to this situation. For one thing, nothing in the text of the Constitution says it does.

If the electors were mere agents of the legislatures what is their purpose? The legislatures could meet and declare to whom their electoral votes are going, or pass a law to state that they automatically go to the popular vote winner in the state. You don't need a person to just go and say what the legislature says. You could do that in a letter or email.

The fact that persons were chosen to cast the votes implies they were not just the equivalents of a letter which could have just as easily have been sent.

And, let's remember, we don't have to be mystified by that. There's a lot on the record that the Founders believed that 1. the demos often 'screws the pooch' and 2. 'the better sort' (elites!) should stand between them and the levers of power. Alongside this rhetoric the choosing of persons to cast the votes makes sense, otherwise it's goofy and superfluous.

# posted by

Mista Whiskas : 3:02 PM

Mr. W: It's certainly not clear that agency law applies to this situation. For one thing, nothing in the text of the Constitution says it does.

The Constitution as written does not in any manner forbid the current system states use to elect the POTUS.

Agency law is how we resolved analogous situations.

Makes sense to apply the same solution in this case.

If the electors were mere agents of the legislatures what is their purpose?

As I noted to Brett in my last post: The only purpose for a state legislature to "appoint" electors to vote on its behalf instead of voting directly for POTUS is to give each state a number of votes equal to the number of it's Representatives and Senators.

The fact that persons were chosen to cast the votes implies they were not just the equivalents of a letter which could have just as easily have been sent.

With 20/20 hindsight, I agree there are more elegant means of electing a POTUS. However, remember the unsatisfactory means the convention gave us is the result of a compromise amongst a badly divided delegation working without any real historical guide as to how a republic should choose a chief executive. Some wanted a parliamentary system with Congress choosing the POTUS and others wanted some form of popular vote. The EC was a riff off of the means chosen to elect Senators and I suspect kept vague to garner enough votes for ratification. The states filled in the blanks.

# posted by

Bart DePalma : 3:17 PM

MW,

why would it make sense to protect *geographical* minorities but not, say, religious or ethnic minorities? There's certainly a far greater history here of the latter being oppressed by the relative majorities.

Indeed. Those who talk about providing geographic privilege to protect "communities of interest" and so on are not merely unconcerned about but downright hostile to the suggestion that some non-geographic communities might be entitled to some political privilege or special protection.

# posted by

byomtov : 3:24 PM

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# posted by

Mista Whiskas : 3:33 PM

byomtov

I've long noted how Bircher Brett's talk about states tracks Lani Guiner's about ethnic minorities.

# posted by

Mista Whiskas : 3:34 PM

"The Constitution as written does not in any manner forbid the current system states use to elect the POTUS."

If that system is directing the electors then this is just begging the question.

"Agency law is how we resolved analogous situations."

Which analogous Constitutional questions were resolved by agency law?

"The EC was a riff off of the means chosen to elect Senators"

To the extent this is true this argues for electors independence.

"The only purpose for a state legislature to "appoint" electors to vote on its behalf instead of voting directly for POTUS is to give each state a number of votes equal to the number of it's Representatives and Senators."

That's silly. Another purpose is to put independent elites between the demos and the levers of power. There's lots of evidence many Founders were thinking that. Also, they wouldn't need individual persons to represent each electoral votes of the state, the Founders could do basic math. In fact, it increasingly looks like the only purpose to appoint electors was so they could exercise their independence.

btw-as a policy matter I find this terrible.

# posted by

Mista Whiskas : 3:37 PM

I was thinking about Bircher Brett's comment about the Constitution being changed by adverse possession. It was a quip for sure, but I wonder if it's not illuminating in a way.

Adverse possession is interesting for us maybe. There's a way to think about property law, let's call it a formalistic way: X has a deed that says their boundary is Y, so everything within Y is X's, end of story.

Adverse possession says 'yeah, this is the technical law, but for reasons of fairness, efficiency, the greater good, etc., if a guy has been possessing and improving this land within Y with no peep from X, we should allow the property to the guy.'

Two points: 1. do our Birchers see this as TEH ULTIMATE TRAVESTY OF JUSTICE? Also, 2. this certainly can't be blamed on TEH PROGRESSIVE TOTALITARIANS...

# posted by

Mista Whiskas : 3:53 PM

"Let's begin by recognizing that 56% popular support in many states doesn't get you a legislative majority due to gerrymandering, disenfranchisement and such. Wisconsin, Virginia, etc., have shown this."

The support was assumed to be uniform. You can't gerrymander your way out of uniform support. Now, disenfranchisement could potentially have an effect here, if there were actually any significant degree of disenfranchisement in America, which there isn't unless you're using the term very loosely indeed.

But, of course, such disenfranchisement could effect any voting based decision system, so it's a wash in deciding between them.

The point here is that the supermajority requirements in Article V do not actually require supermajority levels of support in the voting public. You don't need even remotely 3/4 of the public supporting an amendment for it to carry 3/4 of the states. You just need it to have majority support in 3/4 of the states.

What the supermajorities in Article V do is require that support to be widely distributed. Which is not, I think, an unreasonable demand when changes are proposed to the constitution of a federation.

And, yes, the US is a federation. Not so much of a federation as the Articles of Confederation created, but a long way yet from a unitary state.

"What would be a better protection of the federated states is limitations on the federal government's powers and areas of legislation."

Oh, I agree. This is why "informal amendment" pisses me off so much. It's the chief route by which those limitations have been blown through over time, because when the federal government wants more power in an area, they don't need the states' permission anymore. Just the permission of judges/justices who are chosen by the very officers whose power is proposed to be expanded.

"All of this assumes the idea of a federation or even a nation which has these protections for *states* is a defensible idea."

No, this assumes that the rule of law is a defensible idea: These protections for *states* are already the highest law of the land, we're discussing whether they'll be observed or violated. Short of an amendment to the Constitution, to not observe them is to abandon the rule of law.

# posted by

Brett : 3:54 PM

I'm not sure what I think ultimately about adverse possession...I do note that it was, iirc, comfortably accepted when the Founders ratified the Constitution. What should be taken from this? They knew this kind of thing and thinking was part of their legal tradition, and they didn't seem to object that strongly, to my knowledge. Could this mean that this type of thing was, dare I vis-a-vis JB say 'expected' by the Founders? I also note, that this kind of ruins the parade for those who want to establish a Manichean system where the Democrats-Liberals-Progressives-Totalitarians-whatever are some unique source of evil. People have been disagreeing about how far to carry the 'letter of the law' for a long, long time, about how important is text v. function, results, or what have you.

# posted by

Mista Whiskas : 3:59 PM

"You can't gerrymander your way out of uniform support. "

Of course you can. Let's say every district is 56% GOP. I could draw new districts (with lots of 90% GOP districts and 51% Dem districts) that gives the Dems a big majority in the legislature. This is, of course, what WI, VA and other states did.

"if there were actually any significant degree of disenfranchisement in America, which there isn't unless you're using the term very loosely indeed. "

In 2016 over 6 million felons were disenfranchised. The Presidential election, to say nothing of the the down tickets, was decided on less. This is to say nothing of the non-felons of the territories who are citizens but have no vote.

"The point here is that the supermajority requirements in Article V do not actually require supermajority levels of support in the voting public."

This is a feature, not a bug for Bircher Brett. The preferences of the people of the US < the preferences of the states. Note here the states are the life time political pols who make up the state legislatures (and who get to draw their own lines, use franking privileges, etc.). Bircher Brett is an 'anti-elitist' ostensibly...

"Just the permission of judges/justices who are chosen by the very officers whose power is proposed to be expanded."

This always bothers me. It elides all the things the Founders put in to make sure federal reps were state creatures at heart.

"we're discussing whether they'll be observed or violated"

I thought we were also discussing whether they were defensible or not (this as Sandy Levinson piece, after all).

# posted by

Mista Whiskas : 4:09 PM

"I've long noted how Bircher Brett's talk about states tracks Lani Guiner's about ethnic minorities."

He really is just revisiting Calhoun's theory of "concurrent majorities".

# posted by

Mark Field : 4:27 PM

This comment has been removed by the author.

# posted by

Joe : 4:41 PM

Requiring unions and corporations to fund campaign at a specific point nearer to elections using certain methods (such as separate PACs) is CENSORSHIP. A range of methods in place that make it harder for people to vote, repeatedly in ways the favor Republicans, is handwaved including by citing alleged gotchas that repeatedly are disproved.

The issue of felony disenfranchisement (which I was thinking can be a form of 15A violation not only because of traditional racism angle but that imprisonment in practice is a form of involuntary servitude ... this is a bit creative but less so than the broccoli horrible) and territorial residents is important too. Total loss of rights, of course, is not necessary. Unjust burdens, including what amounts to unconstitutional poll taxes, are a problem too.

those limitations have been blown through over time

Over time? So, there was some "better" time? When was this time?

# posted by

Joe : 4:43 PM

I used to scoff at the idea of 'white privilege.' Our Birchers, and those like them, have helped me realize it's a very real thing.

# posted by

Mista Whiskas : 4:43 PM

"Of course you can. Let's say every district is 56% GOP. I could draw new districts (with lots of 90% GOP districts and 51% Dem districts) that gives the Dems a big majority in the legislature. This is, of course, what WI, VA and other states did"

Um, I think maybe you're having trouble with the meaning of "uniform"?

# posted by

Brett : 6:38 PM

"The issue of felony disenfranchisement (which I was thinking can be a form of 15A violation"

"The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude." Whoops, being a felon isn't in the list. Maybe the 14th amendment?

"But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime"

Nope, no help there. The 15th amendment says nothing of the sort, and the 14th amendment explicitly contemplates disenfranchisement on the basis of crime.

# posted by

Brett : 6:43 PM

Fuller quote:

The issue of felony disenfranchisement (which I was thinking can be a form of 15A violation not only because of traditional racism angle but that imprisonment in practice is a form of involuntary servitude ... this is a bit creative

Maybe, it would be a help to quote a little more, mixed with some basic history.

First, historically, criminal justice was carried out in a racist fashion & it is far from not racist today. Thus, the 15A very well "says something" on the subject.

Second, I added a "bit creative" argument that relied on imprisonment in practice being a form of involuntary servitude. The average prisoner is required to do some form of labor. The 13A grants an exception for those duly convicted. Even those felons not imprisoned might have some form of "servitude" that can be cited. This might not apply to all felons. But, it "can" apply in various cases. A libertarian concerned about the abusive nature of the criminal justice system might work with that.

===

Finally, the 14A is only of limited help. I grant that the Supreme Court cited that in Richardson v. Ramirez. But, I think the dissent had a stronger argument.

First, the 15A came after it.

Second, again, your selective quotation hides the ball some. The provision in question is a penalty clause for when states wrongly disenfranchise people. Now, if you were actually concerned about that clause, you might be more concerned about the overall disenfranchisement issue. If the right to vote is even "in any way abridged," the provision kicks in except for certain exceptions.

Anyway, the "other crime" is only in reference to the penalty of stripping members of the House delegation in percentage of those disenfranchised. It leaves the first section regarding privileges or immunities, due process and equal protection. It doesn't even say "felony." By this logic, a petty misdemeanor can result in life time deprivation of the vote without restraint. But, the right to vote is a fundamental right, a liberty, and that sort of irrational thing is a violation of the 5th and 14th Amendments. Many cases dealt with unjust violation of the right to vote.

The provision especially would not stop felony disenfranchisement that is particularly a violation of equal protection, racial or otherwise, from being a problem. Also, of course, it can just be bad policy. But, I think it also has constitutional problems.

# posted by

Joe : 8:28 PM

The confusion should not avoid a reaffirmation of the point made by me and Mr. W. -- there are significant forms of either disenfranchisement or at least burdensome government action that brings in a significant number of voters.

Mr. W. cited those unable to vote for the president and vice president now, so he was not only talking about those directly contrary to the Constitution or even federal law generally. But, we have that too.

Voting is a fundamental right, the core of republican government in our system. If it is "censorship" to require for profit corporations, which traditionally as creatures of the state for limited purposes could simply be blocked from even carrying out political campaign donations as not part of their function, to provide campaign donations via PACs, perhaps more concern should be given to voting rights.

For instance, the court of appeals just held that New York cannot cancel the presidential primary because only Biden was a candidate now because it is a First Amendment right for voters to have a chance to pick delegates to the national convention. Voting has clear First Amendment implications among other things. It should not be burdened by the government without very good reason.

I put aside the arbitrary way states deal with deciding who will no longer be disenfranchised here including what amounts to race and wealth discrimintation.

# posted by

Joe : 8:40 PM

"A libertarian concerned about the abusive nature of the criminal justice system might work with that."

"Now, if you were actually concerned about that clause, you might be more concerned about the overall disenfranchisement issue."

OK, I see the problem here. Look, I do think disenfranchisement can be a serious problem. I've stated before that I think a felon, once their sentence is done, should be restored to ALL their rights. Without exception. No second class citizens!

But I thought we were discussing what the Constitution can honestly be said to mandate here, not what would be a good policy. They're not the same topic, after all.

And the Constitution clearly permits disenfranchisement on the basis of criminal conviction, just as it permits involuntary servitude as a criminal penalty. Doesn't mean we should do either, of course; The Constitution permits all sorts of bad policies.

# posted by

Brett : 9:29 PM

An extended constitutional argument was provided included in the very paragraph for which you again selectively pulled something out and provided a confused reply.

I briefly tossed in it is ALSO bad policy. I won't repeat my explanation regarding the limited nature of the 14A provision except to note that the Supreme Court in the 1980s held in Hunter v. Underwood that a disenfranchisement law clearly based on racist intent violated the Equal Protection Clause.

Thus, again, noting the limited nature of the clause. Look closer.

# posted by

Joe : 11:31 PM

I would add that, while it's theoretically possible, if the states line up just right, (Think about Arrow's theorem here! EVERY voting system has a failure mode.) for a small minority of the population to block an amendment, historically this has never happened.

Well, it has not happened to any amendment that got to the point of being ratified, or not, by the states.

But, your uniform distribution notwithstanding, this ignores the issue of deterrence. It's entirely possible that some Amendments are stillborn, in that the extreme difficulty of getting them approved has discouraged their introduction as serious proposals.

# posted by

byomtov : 10:05 AM

There is a sort of have your cake and eat it too there.

I thought the whole point is to make it very hard to amend the Constitution.

But, now we are being told heck that isn't really true. Some small group won't really block amendment. 38 states need to ratify. 25% of the states can block. Even if we make that bigger, let's say 33% [and the ERA got to 35], that's still a pretty small group. One blocking the other two. And, yes, that is likely to include some small populated states in various cases, especially since at the moment thinly populated states lean a certain way and a state like Texas can split 55/45 and still be a 'no.'

The parsing at some point is tedious but yes there are very likely many amendments that aren't passed by Congress (or the special effort required to make a strong attempt made) because it is realized it would be a waste of time. And, yes, hundreds of years of practice well predicted early on suggests play in the joints that also makes amendments less likely to be proposed.

All that aside, I think an argument can be made the test for ratification might be too high though that is partially since the inequity of the Senate and other problems in the current system skewers things too much.

# posted by

Joe : 12:31 PM