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11/13/2020

Guy-Uriel Charles & Luis Fuentes-Rohwer on the Chiafalo Decision
Michael Ramsey

Guy-Uriel E. Charles (Duke University School of Law) and Luis E. Fuentes-Rohwer (Indiana University Maurer School of Law) have posted Chiafalo: Constitutionalizing Historical Gloss in Law & Democratic Politics (31 pages) on SSRN.  Here is the abstract:

This Essay examines Justice Kagan’s electoral college decision in Chiafalo v. Washington, which uses historical gloss—post Founding historical practices—to give meaning to the Constitution and to do so in a manner that is arguably inconsistent with the text and structure of the Constitution. We argue that Justice Kagan, the democracy Justice, uses historical gloss instrumentally to constitutionalize a particular and modern view of political participation—which is best reflected by American political practices—and to reject an alternative and anachronistic view—which is best reflected by the text and structure of the Constitution. Chiafalo is an attempt to update and modernize our understanding of representation and political participation. We explore some issues that are raised for the historical gloss literature and for the practice of law and democracy when gloss is used in this way to interpret the Constitution.

For some previous Originalism Blog commentary on Chiafalo:

Mike Rappaport, The Originalist Disaster in Chiafalo

David Weisberg, A Second Opinion re: Chiafalo v. Washington

Michael Ramsey: The Faithless Electors Case: Not as Bad as it Might Have Been 

RELATED:  As a counterpoint, I recently came across this July 2020 post on Chiafalo from an interesting Canadian law blog called Double Aspect --

Leonid Sirota: Keeping Faith: A master class in public meaning originalism, delivered by the US Supreme Court’s Justice Elena Kagan.  From the introduction:

Earlier this week, the Supreme Court of the United States delivered its decision in Chiafalo v Washington, upholding the constitutionality of a state statute imposing fines on “faithless” presidential electors ― those who do not vote for the candidate who won their state’s popular vote. The majority judgment, given by Justice Kagan for a seven-judge majority (and indeed unanimous on some key points), should be of some interest to Canadian readers for what it says about constitutional interpretation and, in particular, about the role of conventions and practice. As others, notably Josh Blackman over at the Volokh Conspiracy, have noted, Justice Kagan’s opinion is a thoroughly, and intelligently, originalist ― which should remind skeptics of originalism inclined to dismiss it as a partisan affectation that it is not.