Rob Natelson’s Research Again Relied on by a Supreme Court Justice

Rob Natelson’s Research Again Relied on by a Supreme Court Justice

On November 27, 2017 the Supreme Court denied certiorari (review) of a lower court decision in Upstate Citizens for Equality v. United States. Justice Clarence Thomas issued a dissenting opinion in which he argued that his colleagues should have taken the case. Justice Thomas twice cited (i.e., explicitly relied on) Rob’s 2008 research article on the Indian Commerce Clause. These two citations mark the 18th and 19th times since 2013 that Supreme Court justices have cited Rob’s articles. (The citations…

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What Does the Founding Era Evidence Say About How Presidential Electors Must Vote? – 5th in a Series on the Electoral College

What Does the Founding Era Evidence Say About How Presidential Electors Must Vote? – 5th in a Series on the Electoral College

The previous installment collected founding era evidence on whether presidential electors were to control their own votes. The evidence included dictionary definitions, existing practices, and the records of the Constitutional Convention. This installment continues the discussion of founding era by collecting material from the public debates on whether to ratify the Constitution. These debates occurred between September 17, 1787, when the Constitution became public, and May 29, 1790, when the 13th state, Rhode Island, ratified. Comments from those debates generally…

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What Does the Founding Era Evidence Say About How Presidential Electors Must Vote? – 4th in a Series on the Electoral College

What Does the Founding Era Evidence Say About How Presidential Electors Must Vote? – 4th in a Series on the Electoral College

As mentioned in the first installment of this series, litigation has erupted in Colorado over whether a state may dictate the vote of a presidential elector and remove that elector if he opts to vote otherwise. Similarly, a Washington State lawsuit tests a state law that, while recognizing the validity of a vote contrary to an earlier pledge, imposes a $1000 fine on an elector who casts such a vote. In 1952 the Supreme Court upheld an Alabama law requiring…

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The Electoral College In Context—or Some Interesting Stuff You Might Not Have Thought About – 3rd in a Series

The Electoral College In Context—or Some Interesting Stuff You Might Not Have Thought About – 3rd in a Series

The first installment in this series addressed the problems the framers faced in devising a system of presidential selection. The second explains that system, as modified by the Twelfth Amendment. This installment addresses how the Electoral College fits in the wider constitutional context. The word “college” does not appear in the Constitution, which refers only to “electors.” Moreover, in this context “college” has nothing to do with higher education. Like many 18th century English language usages, it was based on…

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Electoral College Rules Made Simple (or, rather, less complicated)—2nd in a Series

Electoral College Rules Made Simple (or, rather, less complicated)—2nd in a Series

The first article in this series surveyed the problems the framers encountered in crafting a mode for choosing the president and how they addressed those problems. This installment explains in detail the Constitution’s compressed and technical language as it was understood after adoption of the Twelfth Amendment in 1804. Variations between the original understanding and modern practice are noted in this article. The Constitution initially provided that after the choice of the president the person with the most electoral votes…

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