I posted recently on Robert W. Bennett's interesting piece, Electoral College Reform Ain't Easy, which appeared in Colloquy, the innovative blog of the Northwestern University Law Review. Bennett has graciously agreed to share some further thoughts in reply to my comments:
In a piece on electoral college reform in the inaugural issue of the Northwestern Law Review’s new blog called Colloquy, I provided a short version of an argument that “faithlessness” of electors is not constitutionally protected, despite the original conception of electors as exercising discretion as they debated and decided on who would be our President. I suggested that if one took such constitutional protection seriously, radical reconstruction of our presidential selection process would seem to be required. I mentioned specifically that “neither political party designation nor the names of presidential and vice presidential ‘candidates’ could appear on the ballot, because that is a way of signaling pre-commitment of electors, rather than a process of debate and discussion that was the reason for creating the electoral college.”
Professor Lawrence Solum quoted the argument in his Legal Theory Blog, and then asserted that my “[f]rom the fact that the Constitution contemplates [that] the electors can vote free of instruction, it simply does not follow that ballots cannot list candidate names or party affiliations.” The reason he gives is that “[t]here is a tension at the level of rationale, but such tensions are ubiquitous in the law.” I asked if I could respond on the Legal Theory Blog, and Professor Solum graciously said that I could. I take up that invitation, because I think that further discussion may shed some light on current debates about the approach to constitutional interpretation commonly called “originalism.”
For present purposes, I’ll deal with the version(s) of originalism that refer contemporary questions to original intentions or understandings (or, for that matter, meanings; it matters not which). I put aside the difficult problem of “summing” states of minds of those responsible for some constitutional provision, and also the reach of explicit constitutional language. One could argue that the constitutional provisions governing presidential electors imply discretion, but the language does not say so directly. At the level of intentions (or understandings, or meanings), the originalist argument for discretion is that the constitutional “intenders” wanted electors to exercise discretion–indeed would have insisted upon it–rather than having them rotely parrot someone else’s choice for president.
Once past the summing problem mentioned above, that is basically an accurate historical observation. But I would argue that it provides no serious basis–even in originalist terms–for solving the contemporary question of elector discretion, for the contemporary question bears no real resemblance to the one those intenders thought about. Thus if we could transport an interrogator back to the room where the intenders were deliberating and have him describe the contemporary problem to them in all its detail–including the history that led to it–in all likelihood they would say that the “discretion” they had in mind had nothing to do with the contemporary question of discretion. The mere fact that both can be phrased in terms of “discretion” does not make them the same question. And if the intenders insisted on discretion in the contemporary context as explained to them, they would in all likelihood simultaneously insist on reconstructing the contemporary presidential selection process to make that discretion out in the open and meaningful. They would, in other words, insist on the types of additional moves that I suggested.
I don’t know what Professor Solum means when he characterizes the tensions I mention as “at the level of rationale,” and then dismisses them as “ubiquitous in the law.” I am inclined, however, to demur. He may quarrel with my hypothetical reconstruction of what the intenders would have thought about the contemporary question, but if his quarrel is on some other ground, I would like to understand more about it. I fully grant that tensions of this sort I discuss are, if not ubiquitous, at least quite common in the law, but that is one very good reason why, taken seriously, originalism–of the state of mind variety–will seldom yield answers to contemporary constitutional questions. If two questions differ in important normative dimensions, then regardless of “level[s] of rationale” there is no way that one can plausibly be referred to anybody’s intentions with regard to the other.
Just a few more thoughts. I am absolutely in agreement with Bennett that the kind of argument he made in his original piece and elaborated in his reply does have purchase if deployed against what is sometimes called "original intentions originalism." But I would note that Bennett's point (along with other criticisms) has led sophisticated originalists away from "original intentions originalism" and to what is sometimes called "original meaning originalism"--which focuses on the public meaning of the constitutional text at time of adoption. It is what the an ordinary reader (putting aside some complexities about specialized audiences) would have understood the text to say, and not the intentions or purposes of the framers or ratifiers, that is authoritative. Or to be more specific, from the fact that a constitutional text T has purpose P and from the fact that realizing P would require result R, it does not follow that T requires R. Rationales are not rules, and to the extent that original-intentions originalism implies that they are, then that form of originalism fails as a theory of constitutional interpretation.
For more on the distinction between original meaning and original intentions, see:
On a personal note, it was a thrill hearing from Dean Bennett--who holds the Nathaniel L. Nathanson Professorship at Northwestern. Bennett is one of the most distinguished members of our profession--and it is an honor having his reply appear on Legal Theory Blog.