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35 posts from August 2020

08/31/2020

Harold J. Krent: Can President Trump Be Impeached As Mr. Trump?
Michael Ramsey

Harold J. Krent (Chicago-Kent College of Law) has posted Can President Trump Be Impeached As Mr. Trump? Exploring the Temporal Dimension of Impeachments [abstract only] (Chicago-Kent Law Review, Vol. 95, No. 3, 2020) on SSRN.  Here is the abstract:

Can Congress impeach and convict an officer such as President Trump after he has left office? Most academics considering the issue have concluded that the removal of an executive branch officer or judge from office does not defeat Congress’s jurisdiction to impeach and try the officer. They reason that, even when an officer is no longer in “office,” the House may still impeach and the Senate convict in order to disqualify the individual from serving in public office in the future. Members of Congress tried to galvanize support to impeach both President Clinton and President George W. Bush after they left office.

Although the constitutional language is far from clear, Parliament exercised a continuous power of impeachment prior to the Founding, and many of the newly independent states followed in that tradition. Moreover, on at least one occasion, the House and Senate debated the propriety of continuing the impeachment process after an officer was no longer in office and, in that case, the House impeached and the Senate voted to acquit, but by a slim margin. Nonetheless, I argue that Congress’s impeachment authority is best understood as a weapon of last resort to remove an officer from a position of public power, and that the concomitant power to disqualify an officer from future service does not transform the impeachment remedy into a potential Sword of Damocles hanging over the head of officers for the rest of their lives. Otherwise, the impeachment power would resemble a Bill of Attainder and could be used as a tool to punish opponents of a sitting Congress as well as disqualify leading opposition party candidates who previously had served in offices of public trust from participating in federal politics in the future.

An interesting question, but if the historical power of impeachment extended to former officers under the English system, I don't see why that scope wouldn't carry over to the constitutional power -- unless something in the text says otherwise, which it doesn't.  The Constitution's check on the impeachment power is that (Art. I, Sec. 3) it extends only to removal from office and disqualification from future office.  Art. II, Sec. 4 says that the President, Vice President and all civil officers who are impeached and convicted shall be removed from office, but it doesn't say who may be disqualified from future office.  So I wouldn't read it as limiting the impeachment power; rather, it confirms Art. I, Section 3's indication that the impeachment power encompasses removal from office (in particular, it confirms it as to the President, who absent Art. II, Sec. 4 might argue otherwise based on an analogy to the monarch, who obviously wasn't subject to removal).

08/30/2020

Eric Segall on Legal Realism in Constitutional Law
Michael Ramsey

The recent exchange on this blog between Eric Segall and Chris Green (here and here) focused on one part of Professor Segall's post (at Dorf on Law) on legal realism and constitutional interpretation: We are All Legal Realists Now.  Here is the introduction:

[Legal realism] is extremely important given the trope that has been circulating among scholars and even Supreme Court nominees that Elena Kagan said at her confirmation hearing, "we are all originalists." This statement was proudly repeated by Justice Kavanaugh at his confirmation hearing, and it has been thrown at me numerous times during my debates with originalists, who often add the word "now" to Kagan's quote.

This post argues that originalists employing Kagan's line to defend originalism ignore the context of her statement. I also suggest that "we are all legal realists now" presents a much more accurate understanding of constitutional interpretation as it is actually practiced by our judges than the slogan "we are all originalists now." This post is purely descriptive and leaves normative concerns for another day.

Here is Justice Kagan's full quote about originalism: "Sometimes they laid down very specific rules. Sometimes they laid down broad principles. Either way we apply what they tried to do. In that way, we are all originalists." I think what Kagan pretty obviously meant is that where the Constitution's text is precise and rule-like, judges follow it, but where the text is imprecise and is more principle-like, judges apply that principle with reference to a host of factors, including original meaning but not just original meaning. 

...

Where the text is unambiguous, we don't need fancy theories of interpretation to explain why judges usually follow it (in the rare cases implicating clear text). What makes constitutional law so hard is the great legion of cases when judges have to apply largely indeterminate text to new problems. We all agree that free speech is a worthy aspiration, as are other constitutional limitations on government behavior, such as that it should not deny people the equal protection of the laws or due process of law. Moreover, some originalists even think that the Ninth Amendment allows judges to find unenumerated rights. The hard part is how should judges go about those difficult tasks, and that is where legal realism comes in because few scholars or judges would say that resolving these kinds of cases simply involves reading text and history and mechanically applying those sources of law to new problems or changed circumstances. That process is not an easy one to describe but saying "we are all originalists" does not even come close. Legal realism comes much closer.

08/29/2020

John McGinnis Reviews Mark Tushnet's "Taking Back the Constitution"
Michael Ramsey

At Law & Liberty, John McGinnis: Mark Tushnet’s Anti-Constitutionalism (reviewing [harshly] Mark Tushnet,  Taking Back the Constitution: Activist Judges and the New Age of American Law (Yale Univ. Press 2020)).  From the introduction: 

Mark Tushnet, a Harvard law professor, is the nation’s most prominent leftist legal scholar. He was one of the founders of critical legal studies, which understands legal reasoning and doctrine as a mask for political preferences. Tushnet has said that, as a judge, he would decide cases to advance the cause of socialism. When he was confident that Hillary Clinton would win the presidency and that that there would be a fifth Democrat-appointed justice on the Supreme Court, he wrote an attention-grabbing blog post, “Abandoning Defensive Crouch Liberal Constitutionalism” in which, among many other striking claims, he said, “remember that doctrine is a way to empower our allies and weaken theirs.” He also expostulated about Anthony Kennedy in a manner that cannot be published at a family-friendly site.

Thus, it does not come as a shock that his new book Taking Back the Constitution: Activist Judges and the New Age of American Law offers ideas for progressives to ditch as much doctrine, convention, and even text as they can get away with to achieve their progressive goals. Nor is it astonishing that originalism is a primary target, because originalism is the antithesis of critical legal studies, asserting as it does that the Constitution’s meaning can be established by legal methods and is binding on us, whatever our political preferences.

But it does come as a bit of a surprise that Tushnet’s arguments against originalism are so weak and sometimes depend on assertions about scholarship and Court opinions that are either ill-informed or plainly wrong. Even outside of his attack on originalism, Tushnet has a tin ear for law, seemingly unable to distinguish between arguments that a conservative or progressive court could conceivably find plausible and those that would be outlandish to any judge that can be imagined. Finally, his praise of what he calls “popular constitutionalism” demolishes the distinction between constitutionalism and ordinary politics. In Tushnet’s world, constitutionalism is just a fancy name for arguments to put or maintain one’s preferred regime in power.

And here is Amazon's book description of Professor Tushnet's book:

How the Supreme Court’s move to the right has distorted both logic and the Constitution

What Supreme Court justices do is far more than just “calling balls and strikes.” The Court has never simply evaluated laws and arguments in light of permanent and immutable constitutional meanings. Social, moral, and yes, political ideas have always played into the justices’ impressions of how they think a case should be decided. Mark Tushnet traces the ways constitutional thought has evolved, from the liberalism of the New Deal and the Great Society to the Reagan conservatism that has been dominant since the 1980s. Looking at the current crossroads in the constitutional order, Tushnet explores the possibilities of either a Trumpian entrenchment of the most extreme ideas of the Reagan philosophy, or a dramatic and destabilizing move to the left. Wary of either outcome, he offers a passionate and informed argument for replacing judicial supremacy with popular constitutionalism—a move that would restore to the other branches of government a role in deciding constitutional questions.

08/28/2020

My Review of Martin Flaherty's "Restoring the Global Judiciary"
Michael Ramsey

I've posted on SSRN Courts and Foreign Affairs: "Their Historic Role" (35 Constitutional Commentary, forthcoming 2020) (31 pages), a (mostly favorable) review of Martin S. Flaherty's book Restoring the Global Judiciary: Why the Supreme Court Should Rule in U.S. Foreign Affairs (Princeton Univ. Press 2019).  Here is the abstract: 

This essay reviews Professor Martin Flaherty’s outstanding and engaging recent book Restoring the Global Judiciary: Why the Supreme Court Should Rule in U.S. Foreign Affairs. As the book’s title indicates, Professor Flaherty takes a predominantly originalist/traditionalist approach, arguing that the U.S. Constitution’s text and the Framers’ understanding of it contemplate an active checking and protective role for the courts—particularly in foreign affairs, because foreign affairs offers the greatest risk of abuse by the political branches. Moreover, the book argues, U.S. courts traditionally undertook that role through the late-eighteenth and nineteenth centuries, when courts routinely resolved foreign affairs disputes on the merits, often ruling against the executive branch. Only relatively recently, the account runs, have courts begun to use various gatekeeping doctrines to vindicate growing reluctance to interfere in foreign affairs controversies. The book’s call, then, is for courts to “reclaim their historic role.”

Restoring the Global Judiciary is a particular challenge to those who exalt text, history, and tradition to guide constitutional decision-making. The modern rise of originalism and related approaches has occurred alongside decisions signaling concern over judicial involvement in foreign affairs, and calls for reduced judicial involvement in foreign affairs are often linked with praise for originalist-oriented adjudication. Yet, if Professor Flaherty is right, originalism’s rise should enhance, not reduce, courts’ willingness to constrain the foreign affairs executive.

This Review argues that Professor Flaherty is partly right. In particular, he is right about his three central historical points: that the Constitution’s text and the Framers’ design placed the judiciary in a checking role expressly to protect the separation of powers and individual rights; that this general design extended to foreign affairs; and that courts did commonly decide foreign affairs-related cases in the post-ratification era. Restoring the Global Judiciary gives an insightful, balanced and persuasive account of this history. Yet this Review also argues that Restoring the Global Judiciary deemphasizes substantial historical checks on the judiciary’s role. The Constitution did not create the judiciary as a supervisory force above the other players in the constitutional system. Rather, the courts are actors within the system restrained by its explicit limits, by their assumed institutional role, and by judicial prudence about the role courts can constructively fill. Failing to embrace these limits leaves Restoring the Global Judiciary with a grander vision of the courts than text and history actually support.

And here is the book description from Amazon for Professor Flaherty's book:

Why there should be a larger role for the judiciary in American foreign relations

In the past several decades, there has been a growing chorus of voices contending that the Supreme Court and federal judiciary should stay out of foreign affairs and leave the field to Congress and the president. Challenging this idea, Restoring the Global Judiciary argues instead for a robust judicial role in the conduct of U.S. foreign policy. With an innovative combination of constitutional history, international relations theory, and legal doctrine, Martin Flaherty demonstrates that the Supreme Court and federal judiciary have the power and duty to apply the law without deference to the other branches.

Turning first to the founding of the nation, Flaherty shows that the Constitution’s original commitment to separation of powers was as strong in foreign as domestic matters, not least because the document shifted enormous authority to the new federal government. This initial conception eroded as the nation rose from fledgling state to superpower, fueling the growth of a dangerously formidable executive that today asserts near-plenary foreign affairs authority. Flaherty explores how modern international relations makes the commitment to balance among the branches of government all the more critical and he considers implications for modern controversies that the judiciary will continue to confront.

At a time when executive and legislative actions in the name of U.S. foreign policy are only increasing, Restoring the Global Judiciary makes the case for a zealous judicial defense of fundamental rights involving global affairs.

08/27/2020

A Response to Chris Green
Eric Segall

Chris Green writes: "No (first-order) originalist thinks that 'judges are allowed to decide which changed facts since 1789 or 1868 are relevant enough to justify departures from original meaning.'"
 
 
“In Bradwell v. Illinois, the Supreme Court upheld Myra Bradwell’s exclusion from the Illinois bar on the basis of gender…Bradwell could have been understood as consistent with the [14th Amendment] by Justices who believed that women were intellectually incapable of functioning as competent lawyers. The opposite result would be required [today] given true beliefs about women’s intellectual capacities. Fixed original public meaning can give rise to different outcomes given changing beliefs about facts."
 
 
“Nearly all originalists recognize, that [Originalism requires] updating the application of the Constitution’s fixed principles in light of new factual information. Indeed, such updating is often not only permitted, but actually required by the theory. Otherwise, it will often be impossible to enforce the original meaning under conditions different from those envisioned by the generation that framed and ratified the relevant provision of the Constitution.”
 
And, Ilan Wurman from his book A Debt Against the Living: “Originalists recognize that original meaning often requires that the application of the text evolves as modern circumstances evolve."
 
I rest.

08/26/2020

Segall on the Meaning-Application Distinction
Chris Green

Eric Segall at Dorf on Law presents again an argument he has run many times before: the idea that acknowledging the distinction between meaning and application (or sense and reference, as I would put it) opens the door to exactly the same considerations that living constitutionalism would allow. He writes:

Originalism may be part of our law but so are a host of other factor, some of which most originalists would agree are relevant, such as stare decisis and mistakes of fact by those who wrote and ratified the Constitution and and its amendments. The latter category of considerations, expressly accepted by noted originalists Lawrence Solum, Ilya Somin, and Christopher Green, as I've written before, gives the whole game away. If judges are allowed to decide which changed facts since 1789 or 1868 are relevant enough to justify departures from original meaning, that level of discretion, which can only be exercised off the page of written texts or prior decisions, will inevitably implicate the personal experiences and values of judges in a way that simply cannot be explained by resort to formal legal materials.

One initial confusion here is the distinction between the original textually-expressed meaning itself, which most (but not all!) interpreters think is relevant, and originalism, the thesis that original meaning is binding whenever we are interpreting the Constitution as such. It's a category mistake to say that originalism is part of our law if original meaning is not binding. Those who think original meaning can be overridden by other considerations don't subscribe to originalism, and they therefore wouldn't say that originalism is part of the law. They can agree that original meaning itself can be a defeasible part of our law.  But not originalism.

But this slip is less important than Segall's discussion of mistakes of fact. If the text expresses a general category, filling in the applications of that term will require finding facts of a particular kind. Population categories in the text (e.g., "according to their respective numbers" in Article I, section 2, clause 3) require population facts. It's easy to identify framer errors on this sort of thing; the interim rules game North Carolina fewer representatives than Maryland, despite the fact, as it turned out once we counted in 1790, that North Carolina had more people. Other terms will require an assessment of sociological or moral facts; as I read the history, the term "privileges or immunities of citizens of the United States" requires both. As I put it many years ago (see here at 585), "Only the text can answer what sorts of errors should cause us to abandon adherence to the paradigm case, for only the sense expressed in that text determines which facts are the reference-yielding facts."

No (first-order) originalist thinks that "judges are allowed to decide which changed facts since 1789 or 1868 are relevant enough to justify departures from original meaning." An originalist thinks that the original meaning is binding. That's what it means to be an originalist. And a meaning-application-distinguishing originalist like me (and most other originalists too) doesn't think that interpreters today decide which facts matter and which facts don't matter. The original meaning of the text does that. But people applying the binding, fixed meaning to situations today decide the fact themselves. 

In short, Segall confuses the non-bindingness of original applications (which most originalists today acknowledge) with the non-bindingness of original meaning (which [first-order] originalists by definition reject). And he confuses the ability to find facts with the ability to decide which facts matter

Distinguishing meaning from application, or sense from reference, doesn't "give[] the whole game away." I've frequently used mathematical terminology to make this distinction clear, and it's worth doing again. Meaning determines a function from possible facts to outcomes. If the outcome doesn't depend on the facts, it's a constant function. If the outcome depends on the facts, it's a non-constant function, i.e., a term that has a sense-reference or meaning-application gap. But the size of the gap will vary depending on the term. Just because a function is non-constant does not mean that it is "surjective" or "onto." A surjection is a function that reaches any possible outcome in the codomain for some possible input. For instance, seen as functions from real numbers to real numbers, y=x^3 is surjective, because all real numbers have a real cube root. But y=x^2 is not, because the squares of real numbers are never negative.

If our constitutional terms in context express surjective functions, then those who apply them will be able to reach any outcome they desire if they use the appropriate factual input. Of course, they won't always be able to get away with making up facts, but a surjective function would allow those facts to be relevant: given the right facts and constitutional terminology expressing a surjective function, we can get to any outcome we like. But if our constitutional terminology has a limited range of possible referents--i.e., its meaning expresses a non-constant but also non-surjective function--then those who apply constitutional categories will still face limitations, even though they might be in a position to find the relevant facts. The power to find relevant facts, in short, isn't the same as the power to make facts relevant.

Update (8/27): Segall responds with quotations from Larry Solum, referring to changed "outcomes," and from Ilya Somin and Ilan Wurman, referring to changed "applications." I of course say similar things myself regularly; indeed Ilan cites me at this point in his book. The whole point of a meaning/application distinction is that changes in outcomes or applications are distinct from a "departure from original meaning." I'll quote Euclid v. Ambler Realty: "[W]hile the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation. In a changing world, it is impossible that it should be otherwise. ... [A] degree of elasticity is thus imparted not to the meaning, but to the application of constitutional principles..."

Update (8/28): In response to a proposal from Evan Bernick, Eric concedes, I think, my main point: "Chris, true, no originalist thinks that judges have discretion to choose which facts are made relevant by the text, but that’s exactly what judges have done and will continue to do because realism is true." Later on, alas, he claimed that it was only a joke.

New Book from Jack Rakove on the Free Exercise of Religion
Michael Ramsey

Recently published, by Jack Rakove (Stanford): Beyond Belief, Beyond Conscience: The Radical Significance of the Free Exercise of Religion (Oxford Univ. Press 2020).  Here is the book description from Amazon:

Today, Americans believe that the early colonists came to the New World in search of religious liberty. What we often forget is that they wanted religious liberty for themselves, not for those who held other views that they rejected and detested. Yet, by the mid-18th century, the colonists agreed that everyone possessed a sovereign right of conscience. How did this change develop? In Beyond Belief, Beyond Conscience, Pulitzer Prize-winning author Jack Rakove tracks the unique course of religious freedom in America.

He finds that, as denominations and sects multiplied, Americans became much more tolerant of the free expression of rival religious beliefs. During the Revolutionary era, he explains, most of the new states moved to disestablish churches and to give constitutional recognition to rights of conscience. These two developments explain why religious freedom originally represented the most radical right of all. No other right placed greater importance on the moral autonomy of individuals, or better illustrated how the authority of government could be limited by denying the state authority to act. Together, these developments made possible the great revival of religion in 19th-century America.

As Rakove explains, America's intense religiosity eventually created a new set of problems for mapping the relationship between church and state. He goes on to examine some of our contemporary controversies over church and state not from the vantage point of legal doctrine, but of the deeper history that gave the U.S. its own approach to religious freedom. In this book, he tells the story of how American ideas of religious toleration and free exercise evolved over time, and why questions of church and state still vex us.

(Via Steven Green [Willamette], who has a brief review at SCOTUSblog.)

08/25/2020

A Response from Michael Dorf & Martin Lederman on Originalism and Natural Born Citizens [UPDATED]
Michael Ramsey

At Dorf on Law, Michael C. Dorf & Martin S. Lederman: What is Nonoriginalism? A Response to Professor Ramsey’s Misunderstanding of our Analysis of the Natural Born Citizen Clause. From the introduction:

Earlier this month, Chapman law professor John Eastman wrote an op-ed in Newsweek proposing that Senator Kamala Harris might not be a “natural born citizen” (NBC)—and thus not eligible to be elected Vice President—if her parents, who were foreign nationals rather than U.S. citizens, were not permanent U.S. residents at the time of her birth in California. ... [W]e joined 39 other constitutional scholars who signed a letter explaining what was so very wrong with Professor Eastman’s analysis. ... In a post on the Originalism Blog, University of San Diego law professor Michael Ramsey wrote that he would have signed it, too, at least if it had included “a couple of minor modifications.”  We very much appreciate his general support for our conclusion about Senator Harris. Statements like his and one by UCLA law professor Eugene Volokh underscore that Eastman’s view falls nowhere within the range of opinions held by scholars with a very wide variety of methodological and ideological commitments.

In addition to agreeing with the substance of the response to Professor Eastman, however, Professor Ramsey implicitly accused at least some of the letter’s signers (including one of us by name) of hypocrisy, although Professor Ramsey was too polite to put the charge that pointedly. Professor Ramsey observed that some of its signers “are prominent originalism critics (Erwin Chemerinsky, Michael Dorf, Pamela Karlan, etc.). Yet here they rely on originalist arguments.” With due respect, we think that Professor Ramsey misunderstood both what the letter said and the nature of the broader critique of originalism. 

I'll largely leave aside quibbles about what the letter does or does not say -- partly because I simply don't understand them.  For example, the response says: "The letter acknowledges looking beyond the Constitution’s text, but not for the definition of the term NBC [natural born citizen]. The broader search (which takes us to the longstanding English common law) merely aims to discover whether someone in Senator Harris’s situation is an NBC."  But isn't discovering "whether someone in Senator Harris’s situation is an NBC" part of finding the definition of NBC? In any event, my core claim about the letter is that it used originalist sources, such as the eighteenth-century English common law, to answer the question whether someone in Senator Harris’s situation is a natural born citizen.  That still seems right to me, and it's not clear that the response denies it.

The response's second point -- that is, the nature of the broader critique of originalism -- is the more important one.  My main point was that the letter showed both (a) that definitive answers could be had from originalist sources, and (b) that original meanings are relevant to modern constitutional interpretation. I don't think the response undermines either claim.  The response's main argument seems to be that no one actually denies these propositions.

The response states: "[W]e consider arguments based on the text and on original understandings to be relevant to constitutional interpretation. (Is there anyone who doesn’t?)"  I'm glad to hear that.  But from many academic and non-academic debates, I can assure the writers than there are many people who do not. 

Relatedly, the response says: "[N]o one subscribes to Professor Ramsey’s proposition ... that the original meaning, even if determinate, should have no force in the modern world.' That is not, as he says, one of 'the two most common arguments against originalism.' It is a straw man." Again, I'm glad to have the response on my side, but I think actually people do commonly say that it doesn't matter what meaning the Constitution had at the founding because that was long ago, the people who wrote it were aristocrats and slaveowners, etc. 

Finally, the response says the claim that "the original meaning of the text ... is 'inherently indeterminate, incoherent or impossible' ... is another straw man. Nonoriginalists acknowledge that the Constitution is determinate over a fairly wide range of cases." I'm glad to hear that too.  But I don't think the argument for indeterminacy is as unusual as the response suggests.  I hear it all the time.

So in sum the response confirms that (a) the original meaning of the Constitution "is determinate over a fairly wide range of cases" and (b) "arguments based on the text and on original understandings [are] relevant to constitutional interpretation." The disagreement appears to be mainly the extent to which these propositions are disputed.

I entirely understand and respect the interpretative position the response seems to be taking -- that original meaning is a relevant, but not decisive, consideration.  That position clarifies what I regard as the core question in the originalismism/nonoriginalism debate: what additional things should be considered, and how strongly do they weigh in the resolution?  Clearing away the arguments the response calls "straw men" helps focus on the right question.

UPDATE: Professor Dorf has a brief response to this post as a comment on his original post.  I mostly agree with it, at least the part about our disagreement.

(Also the link at the beginning of this post was bad -- now fixed.  Apologies.)

08/24/2020

Robert Pushaw: Do Foreign Nations Have Constitutional Rights?
Michael Ramsey

Robert J. Pushaw (Pepperdine University - Rick J. Caruso School of Law) has posted Do Foreign Nations Have Constitutional Rights? (Fordham Law Review Online, Vol. 88, p. 142) (14 pages) on SSRN. Here is the abstract:

Ingrid Wuerth challenges the conventional wisdom that the Constitution does not grant any procedural rights, such as notice and personal jurisdiction, to foreign countries. Her foundational premise is that the Constitution’s Framers, Ratifiers, and early interpreters did not precisely use terminology such as “judicial power,” “cases,” “controversies,” “due process,” “subject matter jurisdiction,” and “personal jurisdiction.” Professor Wuerth follows suit by collapsing these terms into a general analytical framework, which is then applied specifically to litigation involving foreign sovereigns. I submit, however, that these words (and the concepts they convey) were— and still are—distinct, albeit related. In particular, clarity would be promoted by treating Article III—which primarily concerns subject matter jurisdiction over three categories of “Cases” and six types of “Controversies”— separately from Due Process issues such as personal jurisdiction. Moreover, Article III’s text and history indicate that its drafters included “Controversies . . . between a State, or the Citizens thereof, and foreign States, Citizens or Subjects” to ensure that such disputes would be resolved impartially by federal judges who, unlike their state counterparts, enjoyed tenure and salary guarantees that insulated them from political pressure. By contrast, Professor Wuerth presents no direct evidence that the Framers or Ratifiers understood this Alienage Clause as guaranteeing procedural rights to foreign nations. Therefore, although I agree with her thesis that foreign governments should receive the same constitutional procedural protections as their citizens and enterprises, the main font of those rights should be the Due Process Clause rather than Article III. I will develop the foregoing ideas primarily by critiquing Professor Wuerth’s historical analysis of those two constitutional provisions. I will then consider some modern implications of her proposal.

 

08/23/2020

Further Comments on Faithless Electors
Michael Ramsey

From David Weisberg:

As a very brief reply to Prof. Rappaport’s response to my comment on his original post about the Chiafalo decision, I would say, first, that the argument based on the original scheme of U.S. Senators being chosen by a State’s legislature is an imaginary horrible.  Suppose, prior to the 17th Amendment, a State’s legislature passed a law providing that anyone chosen to be U.S. Senator must pledge to support policy X.  The esteemed Mr. Jones so pledges and is chosen.  But the Constitution states that Senators have a fixed term of 6 years, and the constitutional doctrine of legislative immunity bars any legal action against a member of Congress for any action taken in the sphere of legitimate legislative activity.  So, for every practical purpose, the “pledge” is a nullity—even if Sen. Jones votes against policy X, he will still serve for 6 years, he cannot be punished by his State, and his Senate votes cannot be reversed.

My second point: Prof. Rappaport’s original post stated that key terms—“electors,” “vote,” and “ballot”—“suggest a person who makes the decision based on his own judgment rather than being controlled by someone else, such as the appointer.”  My response was intended to demonstrate that there is no such “suggestion;” those words are fully consistent with a circumstance in which a person—e.g., a juror—is bound by oath to follow faithfully a judge’s instructions on the law.  Prof. Rappaport responds that the modern practice of requiring jurors to follow those instructions might be unconstitutional.  (A second point of disagreement between us.)  But, whether or not the practice is unconstitutional is beside the point, because the point is that the ordinary English meaning of those key terms neither implies nor even suggests that electors (or jurors) cannot be required to fulfill oaths they freely take upon entering office.  This is a point about the ordinary meaning of certain words, not about the constitutionality of modern jury instructions.      

And from John Vlahoplus:

The Chiafalo decision is a disaster for originalism, and rightly so.  If the words “elector,” “vote,” and “ballot” make electors free agents then they are free of federal as well as state control.  They are free to sell their votes to the highest bidder, foreign or domestic.  The President of the Senate must count known-bribed electoral votes.  

If a state is limited to a narrow power to determine the manner of appointment, and if the federal government is limited to narrow enumerated powers, then neither may judge the qualifications of electors or remove electors for any reason.  If multiple slates of electors return conflicting self-certified lists of electoral votes, as occurred after the Civil War, the President of the Senate must count all of those votes.

If narrow text and historical practice proximate to adoption control, then Congress has no authority to interfere in the manner of appointing electors.  It cannot forbid aliens to vote for electors, to be electors, or to advocate the election of any candidate.

Yet both federal and state governments can forbid bribing electors.  States have long provided for replacing electors.  Congress judges the qualifications of electors, rejects electoral votes that it considers invalid, and forbids aliens to vote for electors, to be electors, or to advocate the election of candidates.  In these and other circumstances, both governments rely on underlying constitutional principles and purposes to elaborate and arguably to act contrary to the Constitution’s sparse text. 

Originalism fails because it routinely results in debates such as those between David Weisberg (here ) and Mike Rappaport (here).  Originalism cannot resolve disputes non-normatively by judging, for example, whether House electors are the right analogue to presidential electors.  There is no reason to believe that any analogue exists.  The Constitution requires presidential electors to vote, for example, but it does not require anyone to vote in House elections.

Originalism also fails as a description of our constitutional practice if Mike Rappaport’s analysis is correct.  Originalism must find all of the state and federal electoral practices described above to be unconstitutional, and the Constitution itself to be a suicide pact.  Insisting that we restrict our interpretive practice to limited historical materials like period dictionaries, statements of Alexander Hamilton, and analogies to other constitutional text is a normative choice.  Fortunately, our constitutional practice and the Chiafalo decision reject that choice.