My career shows an interesting pattern: Although law journals at “prestige” law schools—which are overwhelmingly liberal and anti-originalist—usually refuse to publish my scholarship, they frequently publish articles attempting to rebut it.
I accept this is an unintended compliment.
Recently, for example, Virginia Law Review Online printed an essay by a lawyer criticizing my conclusion, accepted by the U.S. Court of Appeals, that the Constitution protects presidential electors from state laws trying to coerce how they voted. (The case is before the Supreme Court now.) I responded in The Originalism Blog. For those interested in the presidential election system and the Electoral College, I’m reproducing the response here:
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John Vlahoplus’ new essay, Bound Electors (reported here) criticizes the Tenth Circuit’s holding in Baca v. Colorado Dep’t of State. In that case, the court held that presidential electors have the constitutional prerogative, even in the face of state direction, to exercise discretion in casting their votes.
Vlahoplus believes state governments may dictate to presidential electors how they vote, and he marshals some new and interesting material.
My principal difference with his analysis is that I think he radically understates the amount and quality of the originalist evidence supporting elector discretion.
One way in which he does so is by simply not addressing, or even mentioning, much of that evidence. Consider, for example, his terse summary of my essay on the subject: “Rob Natelson argues that Electors are free to vote as they please because a process under the 1776 Maryland Constitution utilized electors, the constitution required those electors to swear that they would vote freely, and therefore the public would have expected Electors to vote freely.”
From that, one might have thought that I cited the mere existence of the Maryland practice as probative. But I also pointed out that the Maryland model was much discussed among the framers and admired by at least some of them.
From Vlahoplus’ summary, moreover, one might have thought also that the Maryland model was the only scrap I offered. But that essay also discussed (1) the indirect election system prevailing in Scotland, home of James Wilson, one of the framers who promoted indirect election, (2) Hamilton’s and Jay’s commonly-cited numbers in The Federalist, (3) comments by framers Roger Sherman, John Dickinson, and William Davie; (4) ratifying convention remarks by James Iredell, Thomas Thacher, and Increase Sumner, and (5) various public essays. Aside from the ambiguous comment by Sumner, all supported the conclusion that presidential electors may exercise discretion.
A second difficulty is Vlahoplus’ classification of many of the Founders’ statements as mere “expectations.” Expectations, we are told, don’t count. (I’ve noticed that some anti-originalists resort to the same technique of classifying statements as expectations and then dismissing them.) Now, one can argue about how many of the relevant comments are pure statements of expectation. Certainly not all of them are. But more importantly statements of expectation can serve as evidence of contemporaneous fact—a purpose for which historians often use them.
For example, suppose that in 1787 James Madison said, “I expect that when Jane comes in, she’ll open the window.” That’s not very strong evidence that Jane did open the window. But it’s pretty good evidence that (1) there was a window, (2) it could be opened, and (3) there was a Jane.
Similarly, when Hamilton stated in The Federalist that he believed electors would use “information and discernment,” that is not very good evidence that future electors did in fact use information and discernment. But it is quite good evidence that Hamilton and his readers believed the Constitution empowered electors to do so.
Vlahoplus believes the probative value of Hamilton’s statements not very great, in part because
. . . it has been suggested that Hamilton’s personal ambition drove his vision of wise Electors acting independently. He was probably the least popular of the Founders. The Federalist Papers were inconsistent advocacy pieces pitched to differing constituencies to achieve ratification. They laid the groundwork for self-serving interpretations of the Constitution, much like statements in the legislative history of congressional statutes today.
I fully agree that constitutional commentators often rely too much on Hamilton. This is not because he was unpopular, but because his views were on the extreme “nationalist” end of the spectrum, and he had little influence on, and little resonance with, the federal-state balance struck by the finished Constitution. These factors counsel strongly against relying on, for example, such post-ratification statements as his then-idiosyncratic interpretation of the General Welfare Clause in his Report on Manufactures (Dec. 5, 1791).
The fact remains, however, that Hamilton was instrumental in persuading skeptical New Yorkers to ratify the Constitution, and he did so in part through representations of the document’s meaning. His writings in The Federalist, like his speeches at the New York ratifying convention, are of this kind. As such they are useful in determining how the Constitution was represented to New Yorkers and, therefore how they understood it (or, if you prefer, what the original public meaning was). Moreover, because The Federalist was used as a pro-Constitution handbook for the Constitution’s advocates in Virginia, North Carolina, and Rhode Island, Hamilton’s contributions had a role in shaping the public understanding (and public meaning) in those states.
Those of us concluding that electors may exercise discretion point to contemporaneous definitions of “elect,” “elector,” “ballot,” and “vote.” Vlahoplus thinks we rely on definitions that are too “thick.” But discretion was not some chance accretion to the meaning of the words “elect” and “elector.” It was core to the dictionary definitions of those words. And although Vlahoplus is correct that electors might corruptly sell their votes, the fact that they could do so shows that they could offer something for sale.
As for the term “ballot:” Its contemporaneous meaning as a secret ballot is too well attested to be brushed aside.
There is much evidence on this subject that Vlahoplus does not address at all. I’ve already mentioned statements by the Founders and public essayists—including highly influential figures such as John Dickinson and Roger Sherman. More serious, however, is his omission of the legislative history of the 12th amendment—the controlling constitutional text today. That history includes a massive number of statements reconcilable only with the conclusion that electors could exercise discretion. The following, culled from our Independence Institute amicus briefs in the Baca case, is a sample from a long recital:
The congressional debates are filled with comments and phases showing that the members of Congress who proposed the Twelfth Amendment took for granted that electors could exercise discretion. Thus, members referred to presidential candidates being “intended by the electors,” [8 Annals of Congress] at 735 & 739 (Rep. Holland); “preferred by the electors,” id. at 740 (Rep. Holland); and “selected by the Electors.” Id. at 696 (Rep. Purviance). Cf. id. 535 (Rep. Hastings, “the Electors . . . will be induced”). Even Rep. Clopton, a professed advocate of direct popular election, id. at 422, used similar language acknowledging that the electors would choose. Id. at 491 (“intended . . . by a majority of the Electors”) & id. at 495 (“contemplated for President by any of the electors”).
Rep. Elliot referred to the risk of introducing “a person to the Presidency, not contemplated by the people or the Electors.” Id. 668. Rep. Thatcher worried that “those Electors who are not devoted to the interest of the ruling faction will exercise a preference of great importance, they will select the candidate least exceptionable.” Id. at 537. Senator Pickering even urged electors to change their recent voting habits, id. at 198, something he clearly assumed they were free to do. See also id. at 718 (similar exhortation by Rep. Goddard).
At least one member, Senator Hillhouse, suggested that as an alternative to a presidential run-off in the House of Representatives, electors be re-convened to vote again. Id. at 132-33. This suggestion assumes, of course, that electors could debate, re-consider, and change their votes . . .
So much for omitted evidence. I have one comment about proffered evidence—that is, Vlahoplus’ quotation from James Madison’s Federalist No. 39: “The immediate election of the president is to be made by the states in their political characters.”
Reading this statement through a modern lens, Vlahoplus can be excused for assuming that “the states in their political characters” means “state governments.” When considered in its context through an 18th century lens, that is not so obvious.
The word “character” in Latin usually means a mark or brand (both the branding instrument and the result). As is so often true of 18th century discourse, the English usage had not flowed far from the source. Typical is the definition in Thomas Sheridan’s 1789 dictionary:
A mark, a stamp, a representation; a letter used in writing or printing; the hand or manner of writing; a representation of any man as to his personal qualities; an account of any thing as good or bad; the person with his assemblage of qualities.
In other writings—indeed, as we shall see, in the passage immediately following—Madison employed the word “character” in ways appearing in the dictionary definition. But his phase “states in their political characters” is anomalous. Did Madison mean state governments? Or did he merely mean that representatives of the state political societies (i.e., the electors) would choose the president? (It was not uncommon for the Founders to use the phrase “election by” when they meant “indirect election by”).
Let’s examine the context. Federalist No. 39 is Madison’s recital of how the new government would be partly national and partly federal. In the quoted portion he referenced federal characteristics. The entire passage is as follows:
The executive power will be derived from a very compound source. The immediate election of the President is to be made by the States in their political characters. The votes allotted to them are in a compound ratio, which considers them partly as distinct and coequal societies, partly as unequal members of the same society. The eventual election, again, is to be made by that branch of the legislature which consists of the national representatives; but in this particular act they are to be thrown into the form of individual delegations, from so many distinct and coequal bodies politic. From this aspect of the government it appears to be of a mixed character, presenting at least as many FEDERAL as NATIONAL features.
Thus, the federal features Madison identified are (1) votes are allotted among states and (2) in runoffs the Representatives were to vote as state delegations.
What is pretty clear is that this is really not a statement about the discretion of electors, but about how the presidential election system is balanced between federal and national features. What is much less clear is exactly what Madison’s odd phrase “political character” was supposed to mean. Because it is ambiguous (like the statement of Increase Sumner) it really doesn’t provide weight to either side of the scale.
But the pro-discretion side of the scale is already very full and very heavy. I don’t know if I would classify the Tenth Circuit’s opinion in Baca v. Colorado Department of State as a “masterpiece.” But based on the originalist evidence, the court certainly reached the correct result.
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