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The Originalist Disaster in Chiafalo

It is difficult to overstate how much of a catastrophe the “faithless electors” Chiafalo case is for originalism. It is not the case’s effect on the operation of the electoral college that is so disastrous. Rather, it is the reasoning of the Supreme Court’s decision. Chiafalo largely portrays itself as an originalist decision, but it abuses originalist methods to reach a clearly incorrect result. But the worst part is that not a single justice, including the originalists, discerned the original meaning, even though it should have been obvious to the entire Court.

The case concerns whether the states can influence or control the votes of the presidential electors (that is, the members of the Electoral College). The state of Washington imposed a $1,000 fine if an elector did not vote for the candidate that he had pledged to support. Colorado had a different law that allowed the state to remove an elector from his position if he did not vote for his pledged candidate. In a decision written by Justice Kagan for eight justices, the Court held that the states could pass either law. Justice Thomas agreed with the result but reached it through different reasoning.

A Worse Noel Canning

In some respects, Chiafalo resembles another originalist failure—the Noel Canning case, where Justice Breyer’s opinion for the Court adopted a broad interpretation of the President’s recess appointment power. As in Noel Canning, the Court ignored the obvious import of the constitutional language and relied upon practice to buttress its weak originalist case. But Chiafalo is much worse than Noel Canning for two reasons. First, the practice that Noel Canning relied upon was much older (arguably dating from 1823) than the practice relied upon by Chiafalo (which dates from the 1900s at the earliest and probably begins only in the 1980s).

Second, and more importantly, in Noel Canning the originalist justices refused to sign on to Justice Breyer’s obviously mistaken opinion, calling it out for the travesty it was. Instead, Justice Scalia wrote for four justices articulating the correct originalist interpretation. But in Chiafalo, all of the justices except for Thomas signed on to Kagan’s awful opinion. And no justice defended the obvious originalist position that was laid out for them on a silver platter by Harvard Law Professor Larry Lessig.

The Constitutional Text

The originalist evidence that the states cannot influence or control the electors is overwhelming. The Constitution establishes a two-step process for the electoral college. The state legislatures decide how the electors are to be appointed. And then the electors decide, based on their own judgment, which presidential candidate to vote for. (Congress also has a limited role.) The Constitution provides:

2: Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors . . . .

3: 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. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate.

The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted . . . .

The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.

This description suggests that the states have the role of selecting the electors and the electors then vote based on their own judgment, which is not subject to state control. After all, the state is merely given the power to “appoint, in such Manner as the Legislature thereof may direct, a Number of Electors.” Appointing an elector would not normally be understood to give authority to control how the elector votes.

Moreover, the provision refers to the persons appointed as “electors” who “vote” and do so by “ballot.” Each of these terms would normally suggest a person who makes the decision based on his own judgment rather than being controlled by someone else, such as the appointer.

Kagan’s Weak Arguments

Justice Kagan attempts to rebut these indications through some contrived and weak counterexamples. For example, she says that voters sometimes have “no real choice because there is only one name on a ballot (consider an old Soviet election, or even a downballot race in this country). Yet if the person in the voting booth goes through the motions, we consider him to have voted.”

But this misses the point. That someone is said to vote when there is only one candidate running does not mean that the person can also be said to vote when they are legally obligated to vote for one of a large number of candidates who are running. That Kagan can imagine these weird hypotheticals does not tell us about the meaning of the term “voter” in the context of the presidential election that the Constitution describes.

These points about the role of appointments and voters are strongly confirmed by other situations in the Constitution. 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.

Justice Kagan then argues that the Framers could have written into the Constitution that the states cannot control the electors’ votes, but did not do so. True, but so what? The question is what the words say, not whether the issue could have been made even clearer in a longer document. As progressives like Kagan love to repeat, Chief Justice Marshall told us it is a constitution we are interpreting, not a code. That line is often misinterpreted as suggesting that the Constitution can be updated to reflect modern circumstances. It means nothing of the kind. Rather, it means that the Constitution is a short document and therefore we should not expect the level of detail that a code provides. Once the Constitution suggests that electors can vote at their discretion, we should not expect a repetitive reminder that the states cannot control them.

Justice Kagan also dismisses evidence from Alexander Hamilton and others that they believed the electors would enjoy independence, because Hamilton was not able to reduce his “thoughts about electors’ discretion to the printed page” in the Constitution. Again, this is weak. No one is arguing that Hamilton’s belief here is binding like constitutional text. Rather, the point is that Hamilton, who is normally considered a persuasive contemporaneous interpreter of the Constitution, apparently believed that the Constitution protected the independence of the electors. Sure, Hamilton could be wrong, but this evidence of the meaning of the language is hardly to be dismissed as irrelevant or unimportant.

Practice

Finally, the Court relies on what it deems to be practice in the form of state customs and laws concerning the electors, but yet again its arguments are feeble. The Court notes that relatively early on electors announced who they would vote for. But that provides no support for laws that constrain elector discretion. People running for office typically make campaign promises, but no one believes that the government can legally prevent the elected candidate from changing his mind or breaking his promise. Indeed, when elections were held for delegates to the ratification conventions, antifederalists who opposed the Constitution received more support than federalists who supported it, but our charter was enacted because a significant number of the antifederalists changed their minds at the conventions.

The states did not even require pledges until the 20th century and such pledges are hardly a precedent for an enforcement procedure to ensure the electors follow their pledges. These enforcement procedures were not enacted in the small number of states that now have them until the 1980s. This modern practice is neither evidence of the original meaning nor a longstanding custom that commands serious consideration.

Overall, the case for elector independence is overwhelming. While I do not expect the four progressive nonoriginalist judges to follow the original meaning, I do expect the originalists to get it right. I am willing to give Justice Thomas a bit of a pass, because he was pursuing his own longstanding theory, albeit one that was misapplied in this case. But what explains the vote of Justice Gorsuch? I believe that Justice Gorsuch has been a great originalist justice so far, although I have disagreed with some of his opinions. But his vote here is an enormous stain on his record. If Chiafalo is the best that originalists can do, that is a damning indictment. Happily, I believe that originalists can and usually do much better.

Reader Discussion

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on August 07, 2020 at 08:37:37 am

How else does one prevent a rigged electoral college vote, having been manipulated in the same way the college was intended to avoid in the general election? Wrong remedy for a real problem? How else do we ensure that electors represent the popular vote? Rather than criminalizing electoral choice, why not focus on choice of electors? If the game is to destroy the electoral college by demonstrating its partisanship in the deviance, isn't the same thing accomplished in compelling it to vote according to a manipulated majority it was designed to thwart? Seems like Miranda and Roe, inappropriate judicial remedies in the face of more Constitutionally palatable alternatives?

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gdp
on August 07, 2020 at 09:40:26 am

It must be emotionally stressful for the cottage industry of academic originalists to suffer such blows to their life's work as were leveled by the Supreme Court in 2020. Constitutional conservatives are alarmed at the Court's continuation of its now decades-long history of inflicting harm on the country. Yet, it is embarrassing for constitutional conservatives to witness the buckets of tears shed by originalists over Chiafalo, while displaying so little emotional angst over Bostock and other far more important missteps of the Court in 2020.

The faithful electors decision, originalist or not, was at least the correct political outcome for the country if we are to avoid electoral chaos, and it poses little if any likelihood of negative long-term political consequences. Whereas, the Court's gross distortion of the meaning of "sex," an operative word for myriad federal statutes and the Fifth and Fourteenth Amendments, caused grave legal and cultural damage and poses the threat of incalculable additional legal and cultural harm.

Originalists/textualists need to get their constitutional and political priorities straight. Rather than shedding buckets of crocodile tears about the Court empowering state restraint of unfaithful electors, they might start by: 1) attacking Bostock, 2) discrediting Roberts' runaway political bias and consequentialism, 3) undermining the faux- textualism deployed in defiance of reality in McGirt vs. Oklahoma, 4) explaining a) why Humphrey's Executor and the CFTC still stand, b) why a textualist/originalist approach this term did not restrain the power of states to regulate both religious practice as well as religious belief, c) why an originalist approach to Article I and the APA does not authorize the president, after providing public notice of his legal reasoning, to repeal an unlawful Executive policy decision that was summarily and arbitrarily imposed by his predecessor, d) why originalism now embraces the notion of pre-textual review of a president's and his Commerce Secretary's subjective motivations and e) explaining why it is not constitutional originalism under the First or fourteenth Amendments for the Court to allow Nevada to selectively discriminate against churches and in favor of gambling casinos in the enforcement of China Virus public health restrictions; and 4) disputing the credible assertion that after this most recent Supreme Court term and with Roberts at the helm "we are all living originalists now."

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paladin
on August 07, 2020 at 10:58:08 am

What's the point in the hand-wringing over this issue? It is the intellectually and morally perplexing, the nettlesome and ultimately backbone-requiring issue of moral philosophy that undergirds juridical conceptions and convictions that is avoided by such hand wringing. This is but a droplet in an entire sea of storms - and shallows.

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Michael Bond
on August 07, 2020 at 11:31:05 am

Cuppla thoughts!
1) The BIG surprise was that the 4 Proggies on the Court did NOT side with the Faithless Electors. Wouldnt this have been truer to form for them?
2) "We are all living originalists now" - Absotively luvv'd it. Sadly it is true.
3) In Chiafolo, let me say "Thank God" for our living originalists and let us give our living originalists a pass on this one as it appears that our "academic" originalists have given them a pass on McGirt, Bostock and other cases alluded to by Paladin.
4) Let us recognize that COTUS does have some imperfections; that *originalism,* if rigidly applied, will neither correct nor ameliorate. The Founders belief in the necessity of, and support for an "aristoi" to correct for the deficiencies of "public opinion" (in Madison's understanding)and structuralized in their vision of an Electoral College is one of those "imperfections."
5) What chaos would result would we be confronted with a concerted effort to overturn either the popular vote or the State by State awarding of Electoral Votes.
And for such a correct *originalist* outcome, the legal academy would welcome utter chaos.

Rappaport is correct. This was not an originalist outcome.
What do we make of this?
Initiate an amendment to COTUS? How many election cycles will pass (with or without chaos) before it is ratified?
Let Faithless Electors continue to express their disdain for the will of their fellow state citizens?
Or best of all, let us pass the National Popular Vote? - Oh, no! NPV could pass and the Electors could disregard the NPV results.

Nope! Give our feckless *originalists* a pass on this one. After all, they are owed one in the grand scheme of things.
(BTW: WHY DOES THIS DANG SPELLCHUCKER INSIST THAT ORIGINALISM IS MISSPELLED? THIS GETS TIRING)

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gabe
on August 07, 2020 at 12:07:49 pm

Maybe your "DANG SPELLCHUCKER" looks for both substantive and literal veracity and sends an alert when either is missing. So that, for example, if originalism is spelled correctly but absent in the case at hand the software corrects the error. That is morally invaluable software. Sort of a Pinocchio spell/fact checker. Were it on the smart phone of every "journalist" and Democrat, but I repeat myself.

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paladin
on August 07, 2020 at 23:40:19 pm

You say the Originalist view is obvious and points the other way? Yet you cite almost no evidence of the original public meaning, beyond a passing reference to Hamilton. If it's so obvious, why don't you lay out the argument more clearly? Asking the reader to gaze at the constitional text has little to do with originalism. This essay is seriously weak, it hurts your credibility.

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Tom Smith
on August 08, 2020 at 18:31:18 pm

Re-read the essay and you will find originalist analysis. For example: "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." Or consider this evidence based on electors that I did not include: The original Constitution provided 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." Clearly, it understood electors to have the free choice to decide on who to vote for. Otherwise, the state legislature could determine who the electors would have to vote for in congressional elections. Given the positive feedback I have gotten on this essay, I am happy to have my reputation stand or fall on it.

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Mike Rappaport
on August 08, 2020 at 14:53:19 pm

Of course the electors were to choose independently. Otherwise the Constitution would have provided that the state legislators vote directly with no need for the college. Duh!

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Scott Amorian
on August 10, 2020 at 20:27:57 pm

Scott:

Good to see you back! Hope the Antifa luncay has not reached your locale.

Yep, the Crafters did not trust the State Legialstures of the time (nor should we today, BTW). Indeed, a credible argument may be advanced that the Constitution was a direct rejection of the contemporary politics of the State Legislatures which repeatedly abused the liberties of the citizenry. Madison, Hamilton, etc expressed their concern (disdain?) for the local Legislatures and attempted to limit the influence of those same legislatures upon the citizenry with their attempt to "consolidate" certain powers within the sphere of the central government. Thus, I would suggest that the fact that the Crafters did NOT leave the task to the State Legislatures does not provide any further support for the opinions, pro or con, for the independence of the Electors.

However, I do agree that there certainly was a strain of thought, to include Madison that abnticipated, if not ecpected the Electors to exercise independent judgement.
As I have previously argued, this was a mistake, a "fatal conceit" of Mr Madison and evidences what we would today call an affinity for the "elite" theory of governance, i.e., only elite, "aristoi" may be ultimately trusted with decision making.
This contrasts with the notion of the "consent of the governed" and further evidences a mistrust of the people (not without cause, BTW).
What Madison failed to consider was the rise of Parties. Rather soon after the rise of Parties, it became clear that Electors would, AND DID, follow party propensity and voted accordingly.
While, my friend Z9 speaks of "practice" and argues, quite correctly that the juridical recognition of practice may lead to rather unwholesome results, the FACT remains that "practice" for Electors was to follow Party line votes - and this continued for almost 200 years.
Were we to reframe the discussion and substitute "reliance interests" for "practice" we may see that Justice Kagan, as well as others in the majority, were simply following SCOTUS precedent of recognizing "reliance interests" and exercising extreme caution in upsetting the balance established over long periods of time / behavior.
I would ask finally:
"What greater *reliance interest* can there be in this Republic than the reliance (belief) of the citizenry that a) their vote counts, b) that the winner of the Electoral College is awarded the Presidency (OK< Hillary and the Dems excepted) and c) that "consent of the governed", the lynchpin predicate of our Republic, means that one's vote SHALL NOT BE overridden by some unknown elite modern day version of Madison / Jefferson's "aristoi."

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gabe
on August 08, 2020 at 17:09:14 pm

I think that Professor Rappaport passes too quickly over the concept of "practice." The practice that is relevant here is that by which states selected their electors, not the way that they attempted to make explicit the obligation of electors through legislation in the 20th century. When the selection of electors was obscured by the practice of citizens voting for a presidential candidate, the rationale of having electors was undermined. Presumably, that rationale was that citizens would give their proxy for selecting the executive to someone they perceived as having good judgment and good character, and who would diligently study and analyze the candidates for president to arrive at a choice that was in the best interests of the country. No one, I would suspect, would argue that this is now even formally true. Most people, since they cast their vote for a presidential candidate, have no idea who the electors they select are, or consequently, what their judgment, character, intelligence, or qualifications are. They have no idea whether the discretion of those electors will result in a reasonable, chancy, or disastrous president.

Justice Kagan leverages this idea by noting that the original Constitutional scheme produced, in her words, "two fiascos." She thus, apparently felt justified in citing "practice" to debug the original scheme. This is the source of the actual peril. The word "practice" is too imprecise to provide a principled limit to Constitutional interpretation. The practice of allowing citizens to express their choice for president, and thus indirectly select electors, who are for the most part anonymous and therefore of unknown background and skill, makes it easy for Justices like Kagan to, in "practice," informally amend the Constitution. In effect, interpreting the Constitution allows an analogue of adverse possession, or "course of dealing," or in the worst case, what is referred to as "Irish democracy" to be legitimate considerations in Constitutional interpretation. The implications of this approach are daunting: rights can be infringed if some "practice" is found to be in conflict, government may assume powers that are not conferred upon it if some "practice" makes it appear otherwise, etc.

This is a particularly perilous time for such innovations to go uncontested. The COVID pandemic has suggested to various governors that they can do pretty much whatever they please by finding any contested policy issue to be a "public health emergency." Start an office pool to see how long this takes to produce "emergency powers" related to firearms, or "hate speech," or fossil fuel use, etc. This is especially concerning because of the recent experience of mayors and governors to accommodate the destruction of whiteyfa protesters in places like Portland, Milwaukee and Seattle, and tolerate the destruction of private property and intimidation of private citizens in the name of wokeness, We should expect that these will eventually be presented to sympathetic, progressive judges as evidence of "practice," with the result that not all political positions will be protected by Constitutional principles.

That's the way I see it anyway.

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z9z99
on August 10, 2020 at 20:35:07 pm

You are correct in stating your concern for the potential unwholesome actions / decisions of some future Progressive jurist. However, I think there is more to Kagan's argument than you allow. (See below)
In short, what if we termed this "reliance interests" rather than "practice." The Courts at multiple levels have taken judicial recognition of "reliance interests", aka (sometimes, OK ) *precedent" with respect to judicial decisions and these precedents have generated certain reliances. Why would not a court also recognize the reliance interests of the citizenry in believing that their votes SHALL NOT be overridden by some "elite" Elector as I expressed to Scott Amorian.
Yes, the proper method is to amend COTUS - but that is unlikely. As for "originalism", this simply shows that any theory that purports to explain ALL, to resolve ALL, is mistaken.

Yep, the Crafters did not trust the State Legialstures of the time (nor should we today, BTW). Indeed, a credible argument may be advanced that the Constitution was a direct rejection of the contemporary politics of the State Legislatures which repeatedly abused the liberties of the citizenry. Madison, Hamilton, etc expressed their concern (disdain?) for the local Legislatures and attempted to limit the influence of those same legislatures upon the citizenry with their attempt to "consolidate" certain powers within the sphere of the central government. Thus, I would suggest that the fact that the Crafters did NOT leave the task to the State Legislatures does not provide any further support for the opinions, pro or con, for the independence of the Electors.

However, I do agree that there certainly was a strain of thought, to include Madison that abnticipated, if not ecpected the Electors to exercise independent judgement.
As I have previously argued, this was a mistake, a "fatal conceit" of Mr Madison and evidences what we would today call an affinity for the "elite" theory of governance, i.e., only elite, "aristoi" may be ultimately trusted with decision making.
This contrasts with the notion of the "consent of the governed" and further evidences a mistrust of the people (not without cause, BTW).
What Madison failed to consider was the rise of Parties. Rather soon after the rise of Parties, it became clear that Electors would, AND DID, follow party propensity and voted accordingly.
While, my friend Z9 speaks of "practice" and argues, quite correctly that the juridical recognition of practice may lead to rather unwholesome results, the FACT remains that "practice" for Electors was to follow Party line votes - and this continued for almost 200 years.
Were we to reframe the discussion and substitute "reliance interests" for "practice" we may see that Justice Kagan, as well as others in the majority, were simply following SCOTUS precedent of recognizing "reliance interests" and exercising extreme caution in upsetting the balance established over long periods of time / behavior.
I would ask finally:
"What greater *reliance interest* can there be in this Republic than the reliance (belief) of the citizenry that a) their vote counts, b) that the winner of the Electoral College is awarded the Presidency (OK< Hillary and the Dems excepted) and c) that "consent of the governed", the lynchpin predicate of our Republic, means that one's vote SHALL NOT BE overridden by some unknown elite modern day version of Madison / Jefferson's "aristoi."

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gabe
on August 13, 2020 at 00:02:18 am

Welcome back, Rappaport. We missed ya.

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nobody.really
Trackbacks
on August 08, 2020 at 07:58:06 am

[…] the Supreme Court get the faithless-electors case wrong? “The originalist evidence that the states cannot influence or control the electors is […]

on August 09, 2020 at 05:42:08 am

[…] the Supreme Court get the faithless-electors case wrong? “The originalist evidence that the states cannot influence or control the electors is […]

on August 09, 2020 at 11:57:42 am

[…] The Originalist Disaster in Chiafalo It is difficult to overstate how much of a catastrophe the “faithless electors” Chiafalo case is for originalism. It is not the case’s effect on the operation of the electoral college that is so disastrous. Rather, it is the reasoning of the Supreme Court’s decision. Chiafalo largely portrays itself as an originalist decision, but it abuses originalist methods to reach a clearly incorrect result. But the worst part is that not a single justice, including the originalists, discerned the original meaning, even though it should have been obvious to the entire Court. […]

on August 09, 2020 at 12:40:17 pm

[…] the Supreme Court get the faithless-electors case wrong? “The originalist evidence that the states cannot influence or control the electors is […]

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