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21 posts from January 2018


James Rogers on Original Meaning and Original Intent
Michael Ramsey

At Liberty Law Blog, James R.  Rogers, Why Scalia’s Originalism Trumps “Original Intent”. From the introduction:

Modern legal originalism evolved dramatically over the four decades of its renewed life in public debate. The speed of that evolution sometimes leaves proponents as well as opponents gasping for breath. Yet the evolution of originalism from Edwin Meese’s “original intentions” to Antonin Scalia’s “textualism” can imply different, even diametrically opposite, answers to the same legal questions.

While both can legitimately claim to be “originalism,” intentionalism and textualism forward mutually exclusive interpretive methodologies. As Scalia wrote in his 1997 book, A Matter of Interpretation: Federal Courts and the Law, “What I look for in the Constitution is precisely what I look for in a statute: the original meaning of the text, not what the original draftsmen intended.”

And further: 

I want to use this distinction in forms of originalism to refine Paul Moreno’s passing comment on originalism in his fine book review of Justice Jackson’s unpublished opinion in Brown v. Board of Education. There he observed, “it is clear on originalist grounds that the Fourteenth Amendment was not intended to prohibit segregated public schools (or racial intermarriage)” needs to be refined by whether originalism is understood as intentions or text.

The observation is certainly correct with respect to originalism as intentionalism, or originalism understood as expected application (in Jack Balkin’s phrase) of the drafters. The evidence is mainly circumstantial, nonetheless compelling. ...


Yet [the Framers'] thoughts, intentions or expectations are irrelevant for textualists originalists. Scalia’s comment about statutory history applies equally to constitutional history: “The statute is what Congress voted on, not what some committee member said he thought it meant. I don’t care what he thought it meant, since the rest of the Congress didn’t know what he thought it meant when they voted for the law.” Textualism distinguishes between original expected application of a provision with its original meaning.

When originalism is understood as textualism rather than intent, it’s no stretch for originalists fairly to read the Fourteenth Amendment to forbid racially segregated schools. ...

(Thanks to Mark Pulliam for the pointer).


John Greil: Second-Best Originalism and Regulatory Takings
Michael Ramsey

John Greil (Independent) has posted Second-Best Originalism and Regulatory Takings (Harvard Journal of Law and Public Policy, Vol. 41, No. 1, p. 373, 2018) on SSRN.  Here is the abstract:

In Murr v. Wisconsin, 137 S. Ct. 1933 (2017), a dissenting Justice Thomas called for the Court to reexamine the entire doctrine of regulatory takings to ensure accordance with the original public meaning of the Takings Clause of the Fifth Amendment or the Privileges or Immunities Clause of the Fourteenth Amendment. This note is the first post-Murr attempt to do so. It concludes that the original public meaning of the Privileges or Immunities Clause did protect against regulatory takings. 

To reach this conclusion, I apply a novel form of originalism for answering constitutional questions where the text runs out. I analyze the neighboring doctrines of nuisance and eminent domain law as they were at the enactment of the Fourteenth Amendment. The structural interactions between legislatures and courts present in nuisance and eminent domain should apply to the regulatory takings question as well. Whether a nuisance exists, or a taking is for public use, is subject to judicial review under a deferential standard. While the legislature has latitude, the court will strictly enforce the limits on that latitude. In short, regulatory takings are protected against by the original public meaning of the Fourteenth Amendment because what legislatures may not do directly, they may not do indirectly.

The second-best originalism I will apply in this Note creates an objective criterion separate from a judge’s policy preferences and respects democratic decision making. It will provide long term benefits by providing guardrails from which constitutional doctrine will not depart, although its normative grounding is not consequentialist. This Note follows Professor Randy Barnett and Evan Bernick in their goal of creating an originalist mode where “original meaning interpretation alone is not enough to resolve a controversy.” It goes further towards constraining the “spirit” prong. This Note takes part in the contemporary project of articulating a sophisticated originalism for hard cases, and applies that theory to the topic of regulatory takings.


More from Will Baude on Supreme Court Jurisdiction over Military Appeals
Michael Ramsey

At Volokh Conspiracy, Will Baude: Exciting Developments in Supreme Court Appellate Jurisdiction.  Here is the introduction:

Two months ago I wrote about a set of cases pending at the Supreme Court from the Court of Appeals for the Armed Forces: Dalmazzi, Cox, & Ortiz v. United States. [Ed.:  Discussed at the Originalism Blog here].  I argued that the Supreme Court lacked jurisdiction to hear an appeal directly from that so-called court (often called CAAF). Since then, some interesting things have happened.

First, that very same day, Professor Aditya Bamzai filed an amicus brief arguing that there was no appellate jurisdiction in the case. (Professor Bamzai was the first person I know of to spot this jurisdictional problem and alerted everybody to it in a previous case, which the Court eventually declined to review.)

Second, both the United States and the petitioner responded to this argument in their merits briefs, with the United States spending four pages arguing that Professor Bamzai was wrong because of previous precedents finding jurisdiction to review the decisions of territorial courts and state courts.

Third, last Friday, the Supreme Court took the very unusual step of giving Professor Bamzai ten minutes of time at oral argument to discuss the jurisdictional problem. It is unusual for a non-government amicus to be given any argument time, but this is particularly important since both of the parties disagree with Bamzai's argument against jurisdiction.

It is far too soon to get one's hopes up, but all of these things strike me as very promising developments. For reasons I will discuss in a draft paper, tentatively titled "Locating Non-Article III Adjudication" (or maybe "So-called Legislative Courts") I think that Professor Bamzai is correct. I will try to boil my reasons down to five quick points ...

Congratulations to Professor Bamzai.


Association of American Law Schools Panels on Intellectual Diversity
Michael Ramsey

Via Josh Blackman's Blog: AALS 2018 Symposium – Why Intellectual Diversity Matters (and What Is To Be Done).  Video at the link.  This is from the Association of American Law Schools (AALS) annual meeting, held this year in San Diego.

Panel 1, "Why Intellectual Diversity Matter": Randy Barnett, Georgetown University Law Center (Moderator); James Lindgren, Northwestern University Pritzker School of Law; Josh Blackman, South Texas College of Law Houston; Laura K. Donohue, Georgetown University Law Center; Carissa Byrne Hessick, University of North Carolina School of Law; Robert J. MacCoun, Stanford Law School.

Panel 2, "What Is to Be Done?": G. Marcus Cole, Stanford Law School (Moderator); George W. Dent, Jr., Case Western Reserve University School of Law; Gail Heriot, University of San Diego School of Law; Daniel B. Rodriguez, Northwestern University Pritzker School of Law; Steve Sanders, Indiana University Maurer School of Law; Kellye Y. Testy, Law School Admission Council.

Professor Blackman comments: 

This was an important discussion, which I hope spurs some action in the AALS, and the legal academy more broadly.

My thought from an originalist perspective:  How many law faculties have even one constitutional scholar with an originalist orientation?  A third of them, perhaps?  (But I expect the number was much less when I graduate from law school).


Ilya Shapiro & Aaron Barnes on President Trump's Lower Court Nominations
Michael Ramsey

At NRO, Ilya Shapiro & J. Aaron Barnes: Making Circuits Courts Appealing Again.  From the introduction:

Even beyond passing tax reform, slashing federal regulations, and pruning the federal bureaucracy, Donald Trump’s most impressive and lasting achievement so far is his record-setting pace of judicial appointments to the U.S. courts of appeals. While the Supreme Court gets attention for its blockbuster national cases, the 13 federal circuit courts represent the end of the line for all but 70 or so of the more than 50,000 cases they decide annually. Judges sit on those appellate benches for life, affecting our law long after the White House has changed hands.

After eclipsing the previous first-year records set by Presidents Kennedy and Nixon with 12 appellate judges confirmed in 2017, what are the prospects for continuing this momentum and increasing Trump’s judicial legacy?

Ultimately, the answer depends on two factors: (1) the number of open seats to fill and (2) the power to get preferred nominees confirmed. With regard to the latter, to paraphrase Yogi Berra, making predictions about control of the Senate is hard, particularly beyond this year’s elections. But engaging in a bit of informed speculation as to the number of seats that will be available for filling is less of a parlor game. The key consideration in forecasting such vacancies — beyond the 17 that currently exist, for which six nominees are pending — is the potential for judges to take advantage of what is known as senior status. This status is governed by the so-called Rule of 80: A federal judge who is at least 65 years old has the option of going into semi-retirement once the judge’s combined age and years on the bench add up to 80. So someone who was appointed before the age of 50 (as most of Trump’s nominees have been) can go senior immediately at 65.

The authors then undertake a circuit-by-circuit assessment.

RELATED, also at NRO:  Ed Whelan, Trump’s Stellar Judges. From the introduction:

Donald Trump deserves thunderous acclaim from conservatives for his outstanding record of judicial appointments during his first year as president. But his conspicuous successes should not obscure the many obstacles on the long path to genuine transformation of the federal judiciary. Those obstacles have seriously impeded judicial confirmations and threaten to continue to do so. But if they are cleared or eluded, and if Republicans retain control of the Senate after the 2018 elections, President Trump will be positioned to make a huge enduring impact on the courts during his first term.

Trump’s most important achievement on the judicial front in 2017 was his appointment of Supreme Court justice Neil Gorsuch to fill the vacancy left by Antonin Scalia’s death in February 2016. ...

In 2017, President Trump also appointed twelve federal appellate judges — a record for a president in his first year in office. (President Obama appointed three federal appellate judges in his first year and 55 over his eight years.) Beyond their number, Trump’s appellate appointees have, on the whole, outstanding credentials and are highly regarded in conservative legal circles. Indeed, six of the twelve have already earned their way onto Trump’s list of Supreme Court candidates. The twelve include three women — Amy Coney Barrett, a former Scalia clerk who was a professor of law at Notre Dame; Joan Larsen, also a former Scalia clerk and a Michigan supreme-court justice; and Allison Eid, who clerked for Justice Thomas and served on the Colorado supreme court for eleven years. They also include two Asian Americans, Amul Thapar, a Bush 43 appointee to a federal district-court judgeship, and James Ho, a distinguished appellate lawyer who was also a Thomas clerk.

An important question remains, mainly regarding the appellate judges: will they be originalist judges, or just "conservative" ones?  Justice Gorsuch seems committed to an originalist approach, but many of the President's appeals court nominees are less certain, either because they have not taken strongly originalist positions or have not previously served as judges, or both.  A group of committed originalists added to the courts of appeal would play an important role in shifting the legal culture toward originalism, but it seems premature to assume that will be the outcome. The early decisions of the "Trump judges" will be important indicators.


Orin Kerr on Collins v. Virginia and Byrd v. United States
Michael Ramsey

At Volokh Conspiracy, Orin Kerr has interesting posts (here and here) on two upcoming Supreme Court cases involving the Fourth Amendment: Collins v. Virginia and Byrd v. United StatesCollins poses the question whether police can look under a tarp on private property where they have reason to believe that (a) there is a motorcycle under the tarp and (b) the motorcycle has been involved in a crime -- but they have no warrant.  Byrd asks whether the driver of a rental car can object to a search if the driver is not listed as an approved driver in the rental contract.

Professor Kerr's analysis is doctrinal and from his as-always outstanding assessments, the cases both sound rather difficult, because they involve areas where the Court has made up an array of not-always-consistent rules.

I'm not a Fourth Amendment scholar but I wonder if an originalist analysis makes both cases a lot easier.  As to Byrd, the Fourth Amendment protects "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures" (emphasis added).  The unauthorized driver is not party to the rental contract (I assume) so the car is not in any sense "their" property, even on a temporary basis.  So, no Fourth Amendment right.  Affirmed.

As to Collins, looking under the tarp (and even being on the property) is a search, the police have no warrant, and the only originalist exception to the warrant requirement is hot pursuit (according to Laura Donohue's masterpiece The Original Fourth Amendment).  The police were not in hot pursuit.  So, a Fourth Amendment violation.  Reversed.

That was easy.  (Of course it's always easier when you don't know the area and ignore the doctrine).


Brian Fitzpatrick & Paulson Varghese: Scalia in the Casebooks
Michael Ramsey

Brian T. Fitzpatrick (Vanderbilt Law School) and Paulson Varghese (Vanderbilt University, Law School, Students) have posted Scalia in the Casebooks (University of Chicago Law Review, Vol. 84, 2017) on SSRN.  Here is the abstract:

In the time since Justice Antonin Scalia’s untimely death, much has been written about what his influence has been and what his influence will be. In this Essay, we try to quantify Scalia’s influence in law school constitutional-law curricula by studying how often his ideas are explored in constitutional-law casebooks. In particular, relative to other justices, we look at how often Scalia’s opinions (for the Court, or his separate opinions) are excerpted in the principal cases and how often he is referred to by name in the notes preceding and following the principal cases. We find that Scalia is at or near the top of most of the metrics we explore here, but he does not tower over the competition. Indeed, the data reveal that perhaps the most important factor driving inclusion in our casebooks is seniority: chief justices and justices who led their ideological wings of the Court have a great deal of power to assign themselves opinions that are likely to end up in our casebooks. We find that the most notable exception in the data is not Scalia, but Justice Samuel Alito: he is included in our casebooks to an especially surprising extent given that, until this year, he has always been the most junior member of his wing of the Court.


Presidential Elector Discretion: The Originalist Evidence (Part 2)
Rob Natelson

[Editor's Note: This is the second part of guest-blogger Rob Natelson's assessment of presidential electors' discretion to vote for candidates other than the one who received the most votes in the elector's state.  As Professor Natelson explains in his previous post, in 2016 some Democratic electors in Colorado and Washington state voted for persons other than the Democratic Party candidate Hillary Clinton, despite state laws purporting to required them to vote for the candidate receiving the most votes in the state; litigation challenging the constitutionality of such state laws is ongoing.  In his previous post, Professor Natelson presented originalist evidence in support of the electors based on text, constitutional structure and contemporaneous practice.  This post addresses evidence from the Constitutional Convention and the ratifying debates.]

Proceedings of the Constitutional Convention. The Electoral College was the product of extensive, and sometimes excruciating, deliberation among the delegates to the framing convention. The final plan was, in all but a few details, hammered out by a blue-ribbon committee consisting of eleven delegates, one from each state then participating in the convention.

This committee was laden with extraordinary talent. Chaired by David Brearly, then Chief Justice of the New Jersey Supreme Court, it counted among its other members James Madison, John DickinsonGouverneur Morris, and Roger Sherman—to name only some of the best known.

Reasons too lengthy to recite here tell us the committee’s plan was carefully considered. The specific decision to institute an Electoral College was based partly on the need to ensure the president’s independence from both Congress and the states. The need for independence from the states had been first enunciated by James Wilson. (Wilson initially favored direct election of the president, but shortly thereafter proposed direct choice by electors instead.) According to Madison’s notes, Wilson “wished to derive not only both branches of the Legislature from the people, without the intervention of the State Legislatures but the Executive also; in order to make them as independent as possible of each other, as well as of the States.”

The desire to render the process largely independent of the states is why the convention repeatedly rejected proposals for state officials to choose the president. As Edmund Randolph observed, “A Natl. Executive thus chosen will not be likely to defend with becoming vigilance & firmness the national rights agst. State encroachments.”

Of course, permitting the states to dictate electors’ votes would undercut that policy of independence from the states.

The Ratification Debates. Still another category of evidence consists of the public debates over whether to ratify the Constitution. These debates occurred between September 17, 1787, when the Constitution became public, and May 29, 1790, when the 13th state, Rhode Island, ratified. They included remarks made in the state ratifying conventions as well as public comments in the form of speeches, pamphlets, broadsides, letters, and newspapers. The record of those debates suggests that the ratifiers and the voting public understood presidential electors were to exercise their own judgment when voting.

Probably the most-quoted ratification-era statement of this kind is found in Hamilton’s Federalist No. 68:

A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations. . . . And as the electors, chosen in each State, are to assemble and vote in the State in which they are chosen, this detached and divided situation will expose them much less to heats and ferments, which might be communicated from them to the people, than if they were all to be convened at one time, in one place.

Admittedly, for a number of reasons, we should not over-rely on The Federalist—or on Hamilton—when reconstructing how the public understood the Constitution. Fortunately, there is a fair amount of additional evidence. There are, first, comments stating merely that the electors (rather than anyone else) would decide how to vote, and that they would act independently.

For example, Roger Sherman, a delegate at Philadelphia and a supporter of the Constitution, wrote that the president would be “re eligible as often as the electors shall think proper.” An essayist signing his name Civis Rusticus (Latin for “Country Citizen”) wrote that “the president was [chosen] by electors.” The Antifederalist author Centinel asserted that the state legislatures would “nominate the electors who choose the President of the United States.” The Antifederalist Candidus feared “the choice of President by a detached body of electors [as] dangerous and tending to bribery.”

In his second Fabius letterJohn Dickinson—also described elector conduct in a way consistent only with free choice:

When these electors meet in their respective states, utterly vain will be the unreasonable suggestions derived for partiality. The electors may throw away their votes, mark, with public disappointment, some person improperly favored by them, or justly revering the duties of their office, dedicate their votes to the best interests of their country.

In Federalist No. 64, John Jay likewise implied elector choice and independence:

The convention . . . have directed the President to be chosen by select bodies of electors, to be deputed by the people for that express purpose; and they have committed the appointment of senators to the State legislatures . . .  As the select assemblies for choosing the President, as well as the State legislatures who appoint the senators, will in general be composed of the most enlightened and respectable citizens, there is reason to presume that their attention and their votes will be directed to those men only who have become the most distinguished by their abilities and virtue, and in whom the people perceive just grounds for confidence.

Some participants emphasized that electors would remain independent because the Constitution would protect them from outside influence. At the North Carolina ratifying convention, James Iredell, later a justice of the U.S. Supreme Court, spoke to the issue in a slightly different context:

Nothing is more necessary than to prevent every danger of influence. Had the time of election been different in different states, the electors chosen in one state might have gone from state to state, and conferred with the other electors, and the election might have been thus carried on under undue influence. But by this provision, the electors must meet in the different states on the same day, and cannot confer together. They may not even know who are the electors in the other states. There can be, therefore, no kind of combination. It is probable that the man who is the object of the choice of thirteen different states, the electors in each voting unconnectedly with the rest, must be a person who possesses, in a high degree, the confidence and respect of his country.

Advocates of the Constitution sometimes promoted the Electoral College as representing a viewpoint all its own rather than as reflecting the will of others. Hence Hamilton’s observation in Federalist No. 60:

The House of Representatives being to be elected immediately by the people, the Senate by the State legislatures, the President by electors chosen for that purpose by the people, there would be little probability of a common interest to cement these different branches in a predilection for any particular class of electors.

Some participants discussed how electors might be appointed—whether by the state legislatures or the people. For example, an essayist styled A Democratic Federalist wrote, “our federal Representatives will be chosen by the votes of the people themselves. The Electors of the President and Vice President of the union may also, by laws of the separate states, be put on the same footing.”

Yet such discussions of appointment were not accompanied by claims that those who made the appointments would dictate the electors’ votes. To be sure, William Davie, another Philadelphia delegate, said at the North Carolina ratifying convention that “The election of the executive is in some measure under the control of the legislatures of the states, the electors being appointed under their direction.” But “in some measure under the control” does not mean “wholly dictate.”

Possibly the closest anyone came to suggesting the legislatures would direct electors’ votes was a comment by Increase Sumner at the Massachusetts ratifying convention: “The President is to be chosen by electors under the regulation of the state legislature.” However, it is unclear what Sumner meant by “regulation.” He could be referring merely to the fact that the legislature would “regulate” how electors were appointed.

For those most part, moreover, participants worded their statements in ways that avoided any suggestions that electors’ votes could be controlled. In arguing for the Constitution, One of the People declared:

By the constitution, the president is to be chosen by ninety-one electors, each having one vote of this number . . . The constitution also admits of the people choosing the electors, so that the electors may be only one remove from the people . . .

Note how this is phrased: (1) the electors choose the president, (2) the people may choose the electors, and if so (3) the choice of the president will be “only one remove from [not “determined by”] the people.”

At the Massachusetts ratifying convention Thomas Thacher asserted “The President is chosen by the electors, who are appointed by the people.” And at the North Carolina convention Iredell argued that “the President is of a very different nature from a monarch. He is to be chosen by electors appointed by the people.” Again, observe the difference between appointment and choice of the president.

In sum, the Hamilton Electors have good cause to claim the mantle of originalism.


Presidential Elector Discretion: The Originalist Evidence
Rob Natelson

[Editor's note: For this guest post and a subsequent one, we again welcome Rob Natelson, Professor of Law (ret.), The University of Montana; Senior Fellow in Constitutional Jurisprudence, Independence Institute, Heartland Institute, and Montana Policy Institute.  Regular readers know Professor Natelson as one of the nation's leading originalist scholars.]

Colorado went Democrat in the 2016 presidential election. But three of Colorado’s Democratic presidential electors wanted to vote for someone other than Hillary Clinton. Two eventually cast ballots for Clinton under court order, while one—not a party to the court proceedings—opted for Ohio Governor John Kasich, a Republican. After this elector voted, state officials, acting pursuant to a judicial interpretation of state lawvoided his ballot, removed him from office, and authorized the other electors to choose a replacement.

Washington State also went Democrat. Four electors committed to Clinton under state law voted for other people. The state recognized the validity of their vote, but imposed a $1000 fine on each “faithless elector.”

Claiming the mantle of originalism, these electors have labeled themselves “Hamilton Electors,” in commemoration of Alexander Hamilton’s Federalist No. 68 (discussed below). Litigation in Colorado and Washington will determine whether they succeed in making their point. According to Harvard Law Professor Lawrence Lessig, who is among the lawyers representing them, the parties in the Colorado suit recently entered into a stipulation designed to facilitate Supreme Court review.

The Supreme Court has addressed a related issue before: In 1952 it upheld an Alabama law requiring a person seeking office as an elector to pledge to support the nominee of his party. Despite that precedent, though, there is strong evidence the Constitution’s original meaning supports the Hamilton Electors’ claim to independence. This posting collects much of that evidence.

At the outset, I should clarify that there are other considerations—not originalist in nature, or at least not entirely so—supporting the Hamilton Electors’ claims to voting discretion.

  • Colorado authorities removed an elector and arranged for appointment of his alleged successor on December 19, 2016. Yet the uniform day chosen by Congress for appointment of electors pursuant to Article II, Section 1, Clause 4 was November 8, not December 19. Colorado officials asserted they were merely declaring and filling a vacancy. But the “vacancy” arose only because officials declared it because the elector did not vote right.
  • The Electoral College is one of several entities that are not part of the federal government but on which the Constitution bestows important powers and duties. The Supreme Court calls these powers and duties “federal functions.” To the extent the Constitution devolves federal functions to states, state legislatures, and state officials, they act through the Constitution as direct agents of the people. They do not act by virtue of powers reserved to the states by the Tenth Amendment. As a matter of constitutional principle, therefore, it is doubtful that state law can punish electors for exercise of a federal function.
  • Indeed, this deduction is supported by a long string of judicial holdings under Article V, which sets forth the Constitution’s amendment procedure. The courts have repeatedly held that states may not enforce laws to control the behavior of actors exercising federal functions in the amendment process.

This essay, however, focuses only on relevant evidence from the Founding.

Today the Electoral College is governed not entirely by the Constitution’s original language, but partly by the 12th amendment. That amendment was ratified in 1804 after political parties, and political control of electors, became the norm. Some argue that the 12th amendment embodies more control on elector discretion than the original language.

The weakness in this argument is that, while the 12th Amendment altered much, it did not substantively change the constitutional language most relevant to elector discretion. The original Constitution read:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors. . . The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves.

The 12th amendment worked no change at all in the wording before the ellipses and very little in the rest. The blend now in effect reads:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors. . . The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves.

Standard rules of legal interpretation provide that, in absence of evidence to the contrary, when language does not change, meaning does not change. There may have been more party pressures on electors in 1804 than in 1788, but there is no evidence the 12th amendment altered electors’ freedom from legal pressures.

It follows that because relevant constitutional rules did not change, we are justified in consulting the usual sources for deducing the Constitution’s original meaning. As patrons of this site know, those sources include (among others) the words and structure of the constitutional text, accepted prior and contemporaneous practices and customs, and the constitutional debates. The constitutional debates include those during the framing and, preeminently, those during the ratification process.  Evidence from each of these categories appears below.

The Meaning of Key Terms in the Text. In both the original and 12th amendment versions of the text, the electors vote by ballot. There were then four methods of voting in common use: (1) viva voce (“by live voice”), (2) show of hands, (3) polling (in which voters filed past a registrar, verified their identity, and stated their preference), and (4) by ballot. The last invariably meant secret ballot—secrecy being the crucial distinction between that method of voting and the others. Hence in 1800, framer Charles Pinckney could say on the floor of the Senate, “[T]he Constitution expressly orders that the Electors shall vote by ballot; and we all know, that to vote by ballot is to vote secretly.”

Of course, the whole point of a secret ballot is to hide the elector’s choice to ensure that choice is free. State laws telling an elector how to vote are inconsistent with free choice; the ballot requirement therefore suggests that such laws are unconstitutional.

A second key word in both the original Constitution and the 12th Amendment is elector. Eighteenth century general dictionaries define an elector as a person who does the choosing. For example, Nathan Bailey’s 1783 dictionary defined an elector as “a chuser.” The first entry for “elector” in the 1785 edition of Samuel Johnson’s dictionary was, “He that has a vote in the choice of any officer.” Other dictionaries featured kindred definitions.

Eighteenth century legal dictionaries did not define “elector,” but they did describe “election”—and with even clearer implications. Giles Jacob’s law dictionary, the most popular of its kind in America, said of “Election” that it “Is when a man is left to his own free will to take or do one thing or another, which he pleases.” Wording very similar to this appears in other law dictionaries.

Constitutional Structure. Article II of the Constitution authorized states to “appoint” electors “in such Manner as the Legislature thereof may direct.” Yet it contained no language empowering states to control electors once appointed. The argument for state control is therefore necessarily that state control of electors is incidental to the appointment power.

Under the legal doctrine of the founding era (as today), to be incidental to a principal (express) power, a power must (among other requirements) be of lesser importance than the principal. (See also Chief Justice Roberts’ opinion for the court in NFIB v. Sebelius.) This probably disqualifies control as a mere incident of appointment. Other parts of Article II support this inference. Specifically:

  • The president’s power to “appoint . . . Judges of the supreme Court” has never been interpreted to carry authority to control their decisions. A prerogative so weighty cannot be implied; it would have to be supported by express wording.
  • The president appoints executive branch officials, but his prerogative to supervise them is not left to implication. The president receives his supervisory authority in the Take Care Clause, in the commissioning power (generally accompanied during the Founding with detailed instructions), in the right to demand reports from cabinet members, and — according to some (although I disagree) — in the Executive Vesting Clause. The absence of provisions authorizing states to dictate their electors’ votes is further evidence the power does not exist.

Contemporaneous Practice. Another important source for the Constitution’s original meaning consists of public practices of the time. Relevant here was the choice of Scottish members of the British Parliament. They were not directly elected, as in England, but elected by “commissioners” chosen for that purpose by voters or by local governments.

A Scottish commissioner could be required to take an oath prescribed by parliamentary statute. By that oath he swore he had not received anything of value—apparently including his position as elector (“Office, Place, Employment”)—in exchange for his vote. In other words, a Scottish elector’s choice was not to be directed by the locality that sent him.

Under the 1776 Maryland constitution, the state senate was elected by electors chosen by the voters. Electors were required to swear that they would “elect without favor, affection, partiality, or prejudice, such persons for Senators, as they, in their judgment and conscience, believe best qualified for the office.”

These two then-prominent precedents suggest a public understanding that electors’ discretion would be unfettered.

[Editor's note: a second post will discuss evidence from the Constitutional Convention and the ratifying debates.]


Erwin Chemerinsky on the Most Important SCOTUS Stories of 2017
Michael Ramsey

In the ABA Journal, Erwin Chemerinsky: The most important SCOTUS stories of 2017.  Number one is, naturally, "The nomination and confirmation of Neil M. Gorsuch."  But in the ensuing four paragraphs of discussion, Dean Chemerinsky does not mention the word "originalism."  (He does note that "thus far, he has voted with Justice Clarence Thomas 100 percent of the time," which he describes as "consistently [being] a very conservative vote.")

I think this misses an important part of the story.  Justice Gorsuch was nominated and confirmed as an outspoken textualist/originalist.  He recently reaffirmed that orientation in a strongly worded speech at the Federalist Society national convention.  Prior to his nomination, commentators predicted that Justice Scalia's textualist originalism would become increasingly irrelevant after his death.  That does not appear to be the case, however.  It seems especially important to constitutional theory and interpretation that Justice Gorsuch is not just a "very conservative vote" but an originalist vote (and an articulate originalist voice).  Obviously that does not mean that the Court will be reliably originalist in the near future; but it means that originalism will remain an important part of the Court's discourse, and hence an important part of academic and political commentary about the Court.

(Via How Appealing).