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08/20/2020

Weisberg on Chiafalo
Mike Rappaport

David Weisberg has criticized my argument that Chiafalo wrongly allowed states to control the votes of presidential electors.  But like many others who disagree with my analysis, Weisberg does not address the strongest arguments against his view.   

First, he does not address how his view would apply to senatorial elections at the time of the Constitution. As I wrote in my initial post:

The original Constitution provided for state legislatures to select the Senators. But no one argued that this allowed the state to pass laws that bound Senators as to how to vote. Similarly, the Constitution provides for the appointment of federal judges by the President with the advice and consent of the Senate, but no one argued that this appointment power allows the President and Senate to control how the judges vote.

I didn’t have space to add a similar argument.  The Constitution provides that “The House of Representatives shall be composed of members chosen every second year by the people of the several states, and the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature.”  The consequence of interpreting the Constitution to allow the states to control presidential electors would seem to be that a state can control how the electors in the state – that is, the voters – exercise their franchise.

Weisberg argues that when someone makes a pledge, it is permissible to enforce that pledge since the pledge was voluntary.  But that is not true of these other provisions.  If candidates for the Senate under the original Constitution pledged to vote in a certain way in the Senate, would the state have the power to remove them if they did not follow this pledge?  Of course not. 

Anyone advocating Kagan or Weisbrod’s position owes us an explanation of how these provisions should be interpreted.  Yet, we do not get one – either from the Supreme Court or from the critics.

Weisberg’s main argument is based on the example of juries.  Weisberg claims that jurors’ votes can be controlled if they misapply the law in that the judge can determine the juror’s misapplied the law.  Weisberg does not mention jury factfinding, but that too might support his case.  Weisberg argues that jurors “vote” and often do so by “ballot,” so why does that not disprove my point?

Weisberg’s argument here is a version of Kagan’s argument in Chiafalo.  We can imagine situations where a constrained choice nonetheless represents a vote, by ballot, by an elector.  But for much the reason that Kagan’s arguments are weak, so are Weisberg’s.

The principal point is the context.  Yes, as Kagan shows, we can envision different contexts than presidential elections where secondary or peculiar meanings of these terms might be applied.  But so what?  The question is whether those meanings make sense in the context of presidential electors, where those secondary meanings do not make sense.  This is especially the case given the constitutional provision that provides that states are given only the power to “appoint, in such Manner as the Legislature thereof may direct, a Number of Electors” who “shall meet in their respective States, and vote by Ballot . . . .”  The specific words and the overall design of the provision, as affirmed by contemporaries such as Hamilton, suggest the electors make their own decisions.  They are electors, like the people who select members of the House of Representatives. 

Weisberg’s argument about the jury is telling.  First, it is by no means clear that our existing rules concerning juries, which allow judges to control both jury law interpretation and factfinding, are correct under the original meaning.  There is significant evidence that juries had the power to determine the law at the time of the Constitution and that review of jury factfinding was unconstitutional. 

But suppose that one rejects this evidence and concludes that jury factfinding and law interpretation can be reviewed under the original meaning.  The only good reason for doing this would be based on the claim that the institution of a jury, historically, allowed judges to review jury factfinding and law determination.  And so the specific context of juries allowed such judicial action.  But that specific context distinguishes juries from presidential electors (as does the fact that juries are not described in the Constitution as electors who vote by ballot).