What the Faithless Electors Decision Says about SCOTUS and Originalism

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tags: Constitution, Supreme Court, Electoral College, originalism, Faithless electors

Among Ray Raphael’s ten books on the Founding Era are Mr. President: How and Why the Founders Created a Chief Executive (Alfred A. Knopf, 2012), Constitutional Myths (The New Press, 2013), and The U. S. Constitution: Explained—Clause by Clause—For Every American Today (Vintage, 2017).




The outcome of Chiafalo v. Washington (a unanimous decision that states may compel presidential electors to cast votes for the candidate to which they are pledged-ed.) was a foregone conclusion. In this troubling time, SCOTUS was not about to upend our system of selecting a president. To achieve the desired result, however, the justices were forced to turn the clear intent of the Framers on its head. This does not mean they made the wrong call; it simply shows us, point blank, that originalism is no more than a pragmatic tool, to be used or ignored at will. 


The opinion of the Court, delivered by Justice Kagan, states correctly that the system of presidential electors “emerged from an eleventh-hour compromise.” But neither the Court, nor the concurring opinion penned by Justice Thomas, tells us why compromise was required. While Kagan and Thomas quarreled over the Framers’ use of the term “manner,”neither discussed the competing views or warring factions—nor why the Framers, in the end, opted for this convoluted, untested resolution to the heated debate over presidential selection. Any originalist would eagerly explore such promising territory; no justice did, not even the self-proclaimed originalists.


Here’s the backstory:


The Virginia Plan, the Convention’s opening foray, called for “a national Executive ... to be chosen by the national Legislature.” That made sense. Under the Articles of Confederation, all the nation’s business was conducted by committees of Congress or boards it appointed, but that had proved highly inefficient. In the new plan, Congress would select a distinct executive to implement its laws. (Not until mid-summer did the Framers dub this executive “President.”)


A few delegates, however, preferred greater separation between the legislative and executive branches of government; they didn’t want the executive to be totally beholden to Congress. But when James Wilson proposed that the executive be selected by the people, several of his colleagues balked. “It would be as unnatural to refer the choice of a proper chief Magistrate to the people,” George Mason pronounced, “as it would, to refer a trial of colours to a blind man.” Most agreed with Elbridge Gerry, who held that “the evils we experience flow from the excess of democracy,” and with Roger Sherman, who proclaimed, “The people immediately should have as little to do as may be about the government. They want information and are constantly liable to be misled.” Rebuffed, Wilson then suggested that the people choose special electors, and this elite crew would select the “Executive Magistracy.” This option also fared poorly. On June 2, by a vote of eight states to two, the Convention affirmed that the national Executive would be chosen by the national Legislature.


Twice more popular election was proposed and turned down. In mid-July, Gouverneur Morris convinced the Convention to opt for special electors, but four days later five states that had favored electors reversed their votes; Congress would choose the Executive, as originally suggested. That is how matters stood until the waning days of August. Then, by a devious maneuver, Gouverneur Morris managed to refer the matter to a committee charged with taking up unsettled issues—even though the manner of selection had been discussed several times and settled. There, in committee, the system we now call the “Electoral College” was written into the Constitution. 


The Committee reported out on September 4, less than two weeks before the Convention would adjourn. Morris, a member, presented “the reasons of the Committee and his own.” “Immediate choice by the people” was not acceptable, while “appointment by the Legislature” would lead to “intrigue and faction.” The committee’s ingenious elector system, on the other hand, depoliticized the process. “As the Electors would vote at the same time throughout the U. S. and at so great a distance from each other, the great evil of cabal was avoided,” he explained. Under such conditions, it would be “impossible” for any cabal to “corrupt” the electors. 


Hamilton, in Federalist 68, sold this notion to the public: “Nothing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption,. ... The convention have guarded against all danger of this sort with the most provident and judicious attention.” Voting separately and independently, “under circumstances favorable to deliberation,” electors would “enter upon the task free from any sinister bias.” Further, to guard against political interference, the Constitution stated that “no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.” This argument addressed the concerns of those who had opposed congressional selection. 


Those who had opposed popular election of the Executive were also pacified. Madison, for example, believed the people should elect their representatives to the lower house of Congress, but selection of senators, judges, and the president should be “refined” by “successive filtrations,” keeping the people at some remove from their government. The elector system did exactly that: people choose their state legislatures, these bodies determine how to choose electors, and the electors choose the president—a most thorough “filtration.” During the debates over ratification, Anti-Federalists complained about this. A New York writer calling himself Cato wrote, “It is a maxim in republics, that the representative of the people should be of their immediate choice; but by the manner in which the president is chosen he arrives to this office at the fourth or fifth hand.” Republicus, from Kentucky, commented wryly, “An extraordinary refinement this, on the plain simple business of election; and of which the grand convention have certainly the honour of being the first inventors.” 


Both arguments presented by the Framers were based on the premise that electors, chosen for their greater wisdom and free to act independently, were best positioned to choose the president. It didn’t work out that way. Political parties quickly gamed the system, leading to the fiascos of 1796 and 1800. The Twelfth Amendment addressed one flaw in the scheme by requiring separate votes for the president and vice president, but it did not change the fundamental structure. To this day, we remain saddled with a system devised to shield selection of the president from politics and the people. 


That was then, and this is now—an unpleasant truth for originalists. A Court composed of faithful originalists would have decided Chiafalo v. Washington unanimously in favor of the rebel electors, who insisted on maintaining their Constitutionally-guaranteed independence. Fortunately, there are no true originalists on the Court. Yet that does raise troubling questions:


Did the Court’s professed originalists consciously ignore the historical context for presidential electors, too embarrassed by the Framers’ distrust of democracy and their inability to foresee the system’s basic flaws? Or did they not understand the textual record, which makes that context clear? Neither alternative is acceptable. Any standard of jurisprudence must be applied evenly and knowledgeably, or it is no standard at all. 


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