Thursday, May 28, 2020

Will the Faithless Electors Cases "Do Grave Damage to Originalism"?

By Josh Blackman - May 28, 2020 at 10:44AM

Earlier this month, the Supreme Court heard oral argument in the so-called "faithless electors" cases, Chiafalo v. Washington and Colorado Department of State v. BacaProfessor John McGinnis worries that originalists on the Court may let pragmatic concerns trump original meaning altogether.

John compares these cases to Noel Canning: these cases lack any controlling precedent, and can be decided without regard to stare decisis.

The cases' significance for originalism stems from the absence of controlling Court precedent on the question of a presidential elector's discretion. Most Supreme Court cases have prior cases that arguably dispose of the issue, but these do not. The only case about the obligations imposed on electors, Ray v. Blair, concerned moral pledges that parties required of the electors, not the very different question of whether the electors' choice can be disciplined by law. In their lack of controlling precedents, these new cases resemble NLRB v. Noel Canning, in which the Court had to address, for the first time in its jurisprudence, certain important questions about the scope of the Recess Appointments Clause.

I analogize Noel Canning to originalism in "precedential open fields, as opposed to deep in the thicket." There are no institutional constraints to follow some wayward precedent from the Warren Court. Here, the faint-hearted originalists can't hide behind stare decisis.

Instead, McGinnis warns, they'll hide behind precedent-by-another name: call it the "chaos" theory of constitutional law:

Unfortunately, if the oral argument for the cases about presidential electors is any indication, the Court may do grave damage to originalism by suggesting that the bad consequences of a constitutional provision or practice subsequent to the time of its enactment can override its original meaning….

And in oral argument, some justices who might be thought to harbor originalist sympathies openly appealed to consequentialist arguments. For instance, Justice Kavanaugh suggested that when it is a "close call" on meaning, the Court might consider avoiding the "chaos" that he implied might follow from a decision allowing electoral discretion.

John explains that the Justices' concerns for "slippery slopes" will always trump original meaning;

Furthermore, who is to decide how "close" the case must be to permit the consideration of consequences? That is a slippery slope that will allow the original meaning to become merely one consideration among many. For instance, assume that the question of whether the Second Amendment protects an individual right to bear arms is close, even if the better view tips in its favor. Kavanaugh's approach would authorize judges to decide the case based on their assessment of the consequences of various gun control measures.

At bottom, a ruling against the electors could "bury originalism."

As Mike Rappaport and I have argued, it is constitutional for judges to follow Court precedent rather than original meaning. It is even warranted in certain, limited circumstances. Originalists need to frame better-reticulated rules about what those circumstances are. But inviting judges to consider the consequences of their decisions or the recent practice of other governmental actors as guides to interpretation threatens to bury originalism.

Seth Barrett Tillman and I had similar concerns after oral arguments. We wrote two posts about how to properly characterize electors as a matter of original public meaning: we think they hold "public trusts under the United States." But we acknowledged that some of the Justices worried about that "chaos" that could result in a judgment for the electors. As a result, we offered a middle-ground approach to help reconcile the original public meaning of the Constitution with pragmatic concerns. If the Court is truly motivated by a desire to avoid "chaos," and cannot rule that electors have discretion, our approach helps to avoid originalism's burial.


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