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New Research Finds Most State Constitutional “Blaine Amendments” Facially Unconstitutional

New Research Finds Most State Constitutional “Blaine Amendments” Facially Unconstitutional

My newly published research finds that state constitutional bans on aid to “sectarian” institutions are facially unconstitutional.

The bans have long been controversial, because some courts use them to void school choice programs that include religious schools. Opponents of those provisions—sometimes called “Blaine Amendments” after 19th century political figure James G. Blaine—typically claim they violate the Religion Clauses of the First Amendment because they were designed to discriminate against Catholic institutions. Defenders argue, however, that they apply to all religions, and serve to maintain a necessary wall of separation between church and state.

The new findings demonstrate that bans on “sectarian” aid were not merely designed to discriminate against all religions, or against only Catholics. Rather they were designed to require state officials to discriminate in favor of mainstream Protestantism and against any faiths they deemed “bigoted” or “extreme.” In fact, they probably shouldn’t even be called “Blaine amendments” because they went well beyond Blaine’s less-discriminatory proposal for amending the U.S. Constitution.

The plain meaning of 19th century bans on “sectarian” aid thus renders them facially unconstitutional.

The article was published in the Federalist Society Review, and can be accessed here.

It was made possible by funding from the Education Policy Center at the Independence Institute.

 

Presidential Elector Discretion: The Originalist Evidence

Presidential Elector Discretion: The Originalist Evidence

This post first appeared at The Originalism Blog, in first and second installments.

Colorado went Democrat in the 2016 presidential election. But three of Colorado’s Democratic presidential electors wanted to vote for someone other than Hillary Clinton. Two eventually cast ballots for Clinton under court order, while one—not a party to the court proceedings—opted for Ohio Governor John Kasich, a Republican. After this elector voted, state officials, acting pursuant to a judicial interpretation of state lawvoided his ballot, removed him from office, and authorized the other electors to choose a replacement. (You can see a video of the heavy-handed procedure here.)

Washington State also went Democrat. Four electors committed to Clinton under state law voted for other people. The state recognized the validity of their vote, but imposed a $1000 fine on each “faithless elector.”

Claiming the mantle of originalism, these electors have labeled themselves “Hamilton Electors,” in commemoration of Alexander Hamilton’s Federalist No. 68 (discussed below). Litigation in Colorado and Washington will determine where they succeed in making their point. According to Harvard Law Professor Lawrence Lessig, who is among the lawyers representing them, the parties in the Colorado suit recently entered into a stipulation designed to facilitate Supreme Court review.

The Supreme Court has addressed a related issue before: In 1952 it upheld an Alabama law requiring a person seeking office as an elector to pledge to support the nominee of his party. Despite that precedent, though, there is strong evidence the Constitution’s original meaning supports the Hamilton Electors’ claim to independence. This posting collects much of that evidence.

At the outset, I should clarify that there are other considerations—not originalist in nature, or at least not entirely so—supporting the Hamilton Electors’ claims to voting discretion.

  • Colorado authorities removed an elector and arranged for appointment of his alleged successor on December 19, 2016. Yet the uniform day chosen by Congress for appointment of electors pursuant to Article II, Section 1, Clause 4 was November 8, not December 19. Colorado officials asserted they were merely declaring and filling a vacancy. But the “vacancy” arose only because officials declared it because the elector did not vote right.
  • The Electoral College is one of several entities that are not part of the federal government but on which the Constitution bestows important powers and duties. The Supreme Court calls these powers and duties “federal functions.” To the extent the Constitution devolves federal functions to states, state legislatures, and state officials, they act through the Constitution as direct agents of the people. They do not act by virtue of powers reserved to the states by the Tenth Amendment. As a matter of constitutional principle, therefore, it is doubtful that state law can punish electors for exercise of a federal function.
  • Indeed, this deduction is supported by a long string of judicial holdings under the Article V, which sets forth the Constitution’s amendment procedure. The courts have repeatedly held that states may not enforce laws to control the behavior of actors exercising federal functions in the amendment process.

This essay, however, focuses only on relevant evidence from the Founding.

Today the Electoral College is governed not entirely by the Constitution’s original language, but partly by the 12th amendment. That amendment was ratified in 1804 after political parties, and political control of electors, became the norm. Some argue that the 12th amendment embodies more control on elector discretion than the original language.

The weakness in this argument is that, while the 12th Amendment altered much, it did not substantively change the constitutional language most relevant to elector discretion. The original Constitution read:

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

The 12th amendment worked no change at all in the wording before the ellipses and very little in the rest. The blend now in effect reads:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors. . . The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves.

Standard rules of legal interpretation provide that, in absence of evidence to the contrary, when language does not change, meaning does not change. There may have been more party pressures on electors in 1804 than in 1788, but there is no evidence the 12th amendment altered electors’ freedom from legal pressures.

It follows that because relevant constitutional rules did not change, we are justified in consulting the usual sources for deducing the Constitution’s original meaning. As patrons of this site know, those sources include (among others) the words and structure of the constitutional text, accepted prior and contemporaneous practices and customs, and the constitutional debates. The constitutional debates include those during the framing and, preeminently, those during the ratification process.  Evidence from each of these categories appears below.

The Meaning of Key Terms in the Text. In both the original and 12th amendment versions of the text, the electors vote by ballot. There were then four methods of voting in common use: (1) viva voce (“by live voice”), (2) show of hands, (3) polling (in which voters filed past a registrar, verified their identity, and stated their preference), and (4) by ballot. The last invariably meant secret ballot—secrecy being the crucial distinction between that method of voting and the others. Hence in 1800, framer Charles Pinckney could say on the floor of the Senate, “[T]he Constitution expressly orders that the Electors shall vote by ballot; and we all know, that to vote by ballot is to vote secretly.”

Of course, the whole point of a secret ballot is to hide the elector’s choice to ensure that choice is free. State laws telling an elector how to vote are inconsistent with free choice; the ballot requirement therefore suggests that such laws are unconstitutional.

A second key word in both the original Constitution and the 12th Amendment is elector. Eighteenth century general dictionaries define an elector as a person who does the choosing. For example, Nathan Bailey’s 1783 dictionary defined an elector as “a chuser.” The first entry for “elector” in the 1785 edition of Samuel Johnson’s dictionary was, “He that has a vote in the choice of any officer.” Other dictionaries featured kindred definitions.

Eighteenth century legal dictionaries did not define “elector,” but they did describe “election”—and with even clearer implications. Giles Jacob’s law dictionary, the most popular of its kind in America, said of “Election” that it “Is when a man is left to his own free will to take or do one thing or another, which he pleases.” Wording very similar to this appears in other law dictionaries.

Constitutional Structure. Article II of the Constitution authorized states to “appoint” electors “in such Manner as the Legislature thereof may direct.” Yet it contained no language empowering states to control electors once appointed. The argument for state control is therefore necessarily that state control of electors is incidental to the appointment power.

Under the legal doctrine of the founding era (as today), to be incidental to a principal (express) power, a power must (among other requirements) be of lesser importance than the principal. (See also Chief Justice Roberts’ opinion for the court in NFIB v. Sebelius.)This probably disqualifies control as a mere incident of appointment. Other parts of Article II support this inference. Specifically:

  • The president’s power to “appoint . . . Judges of the supreme Court” has never been interpreted to carry authority to control their decisions. A prerogative so weighty cannot be implied; it would have to be supported by express wording.
  • The president appoints executive branch officials, but his prerogative to supervise them is not left to implication. The president receives his supervisory authority in the Take Care Clause, in the commissioning power (generally accompanied during the Founding with detailed instructions), in the right to demand reports from cabinet members, and—according to some (although I disagree) —in the Executive Vesting Clause. The absence of provisions authorizing states to dictate their electors’ votes is further evidence the power does not exist.

Contemporaneous Practice. Another important source for the Constitution’s original meaning consists of public practices of the time. Relevant here was the choice of Scottish members of the British Parliament. They were not directly elected, as in England, but elected by “commissioners” chosen for that purpose by voters or by local governments.

A Scottish commissioner could be required to take an oath prescribed by parliamentary statute. By that oath he swore he had not received anything of value—apparently including his position as elector (“Office, Place, Employment”)—in exchange for his vote. In other words, a Scottish elector’s choice was not to be directed by the locality that sent him.

Under the 1776 Maryland constitution, the state senate was elected by electors chosen by the voters. Electors were required to swear that they would “elect without favor, affection, partiality, or prejudice, such persons for Senators, as they, in their judgment and conscience, believe best qualified for the office.”

These two then-prominent precedents suggest a public expectation that electors’ discretion would be unfettered.

Proceedings of the Constitutional Convention. The Electoral College was the product of extensive, and sometimes excruciating, deliberation among the delegates to the framing convention. The final plan was, in all but a few details, hammered out by a blue-ribbon committee consisting of eleven delegates, one from each state then participating in the convention.

This committee was laden with extraordinary talent. Chaired by David Brearly, then Chief Justice of the New Jersey Supreme Court, it counted among its other members James Madison, John DickinsonGouverneur Morris, and Roger Sherman—to name only four of the best known.

Reasons too lengthy to recite here tell us the committee’s plan was carefully considered. The specific decision to institute an Electoral College was based partly on the need to ensure the president’s independence from both Congress and the states. The need for independence from the states had been first enunciated by James Wilson. (Wilson initially favored direct election of the president, but shortly thereafter proposed direct choice by electors instead.) According to Madison’s notes, Wilson “wished to derive not only both branches of the Legislature from the people, without the intervention of the State Legislatures but the Executive also; in order to make them as independent as possible of each other, as well as of the States.”

The desire to render the process largely independent of the states is why the convention repeatedly rejected proposals for state officials to choose the president. As Edmund Randolph observed, “A Natl. Executive thus chosen will not be likely to defend with becoming vigilance & firmness the national rights agst. State encroachments.”

Of course, permitting the states to dictate electors’ votes would undercut that policy of independence from the states.

The Ratification Debates. Still another category of evidence consists of the public debates over 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. They included remarks made in the state ratifying conventions as well as public comments in the form of speeches, pamphlets, broadsides, letters, and newspapers. The record of those debates suggests that the ratifiers and the voting public understood presidential electors were to exercise their own judgment when voting.

Probably the most-quoted ratification-era statement of this kind is found in Hamilton’s Federalist No. 68:

A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations. . . . And as the electors, chosen in each State, are to assemble and vote in the State in which they are chosen, this detached and divided situation will expose them much less to heats and ferments, which might be communicated from them to the people, than if they were all to be convened at one time, in one place.

Admittedly, for a number of reasons, we should not over-rely on The Federalist—or on Hamilton—when reconstructing how the public understood the Constitution. Fortunately, there is a fair amount of additional evidence. There are, first, comments stating merely that the electors (rather than anyone else) would decide how to vote, and that they would act independently.

For example, Roger Sherman, a delegate at Philadelphia and a supporter of the Constitution, wrote that the president would be “re eligible as often as the electors shall think proper.” An essayist signing his name Civis Rusticus (Latin for “Country Citizen”) wrote that “the president was [chosen] by electors.” The Antifederalist author Centinel asserted that the state legislatures would “nominate the electors who choose the President of the United States.” The Antifederalist Candidus feared “the choice of President by a detached body of electors [as] dangerous and tending to bribery.”

In his second Fabius letterJohn Dickinson—also described elector conduct in a way consistent only with free choice:

When these electors meet in their respective states, utterly vain will be the unreasonable suggestions derived for partiality. The electors may throw away their votes, mark, with public disappointment, some person improperly favored by them, or justly revering the duties of their office, dedicate their votes to the best interests of their country.

In Federalist No. 64, John Jay likewise implied elector choice and independence:

The convention . . . have directed the President to be chosen by select bodies of electors, to be deputed by the people for that express purpose; and they have committed the appointment of senators to the State legislatures . . .  As the select assemblies for choosing the President, as well as the State legislatures who appoint the senators, will in general be composed of the most enlightened and respectable citizens, there is reason to presume that their attention and their votes will be directed to those men only who have become the most distinguished by their abilities and virtue, and in whom the people perceive just grounds for confidence.

Some participants emphasized that electors would remain independent because the Constitution would protect them from outside influence. At the North Carolina ratifying convention, James Iredell, later a justice of the U.S. Supreme Court, spoke to the issue in a slightly different context:

Nothing is more necessary than to prevent every danger of influence. Had the time of election been different in different states, the electors chosen in one state might have gone from state to state, and conferred with the other electors, and the election might have been thus carried on under undue influence. But by this provision, the electors must meet in the different states on the same day, and cannot confer together. They may not even know who are the electors in the other states. There can be, therefore, no kind of combination. It is probable that the man who is the object of the choice of thirteen different states, the electors in each voting unconnectedly with the rest, must be a person who possesses, in a high degree, the confidence and respect of his country.

Advocates of the Constitution sometimes promoted the Electoral College as representing a viewpoint all its own rather than as reflecting the will of others. Hence Hamilton’s observation in Federalist No. 60:

The House of Representatives being to be elected immediately by the people, the Senate by the State legislatures, the President by electors chosen for that purpose by the people, there would be little probability of a common interest to cement these different branches in a predilection for any particular class of electors.

Some participants discussed how electors might be appointed—whether by the state legislatures or the people. For example, an essayist styled A Democratic Federalist wrote, “our federal Representatives will be chosen by the votes of the people themselves. The Electors of the President and Vice President of the union may also, by laws of the separate states, be put on the same footing.”

Yet such discussions of appointment were not accompanied by claims that those who made the appointments would dictate the electors’ votes. To be sure, William Davie, another Philadelphia delegate, said at the North Carolina ratifying convention that “The election of the executive is in some measure under the control of the legislatures of the states, the electors being appointed under their direction.” But “in some measure under the control” does not mean “wholly dictate.”

Possibly the closest anyone came to suggesting the legislatures would direct electors’ votes was a comment by Increase Sumner at the Massachusetts ratifying convention: “The President is to be chosen by electors under the regulation of the state legislature.” However, it is unclear what Sumner meant by “regulation.” He could be referring merely to the fact that the legislature would “regulate” how electors were appointed.

For those most part, moreover, participants worded their statements in ways that avoided any suggestions that electors’ votes could be controlled. In arguing for the Constitution, One of the People declared:

By the constitution, the president is to be chosen by ninety-one electors, each having one vote of this number . . . The constitution also admits of the people choosing the electors, so that the electors may be only one remove from the people . . .

Note how this is phrased: (1) the electors choose the president, (2) the people may choose the electors, and if so (3) the choice of the president will be “only one remove from [not “determined by”] the people.

At the Massachusetts ratifying convention Thomas Thacher asserted “The President is chosen by the electors, who are appointed by the people.” And at the North Carolina convention Iredell argued that “the President is of a very different nature from a monarch. He is to be chosen by electors appointed by the people.” Again, observe the difference between appointment and choice of the president.

In sum, the Hamilton Electors have good cause to claim the mantle of originalism.

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 appeared in 6 different cases.) Besides Justice Thomas, Rob’s articles have been relied on by the late Antonin Scalia and by Chief Justice Roberts.

The Constitution’s Indian Commerce Clause reads “The Congress shall have Power . . . to regulate Commerce . . . with the Indian tribes.” Congress, with the support of the courts, claims those words give Congress “plenary” (unlimited) authority to govern Indian affairs without participation by the states—and even without participation by the President-and-Senate acting under the Treaty Power.

Justice Thomas has long doubted that this is the correct reading of the Indian Commerce Clause, and Rob’s research, published in the 2008 article, showed convincingly that Justice Thomas was right to be skeptical. The article was entitled The Original  Understanding of the Indian Commerce Clause, and it is available here.

In the Upstate Citizens case, the Secretary of the Interior, acting under a congressional statute supposedly authorized by the Indian Commerce Clause, seized jurisdiction over 13,000 acres in central New York State. The effect was to largely muscle out state and local authorities and to damage private citizens. Suing to overturn this action were citizens, a civic organization, and a local government.

The plaintiffs lost in the lower tribunals. The U.S. Court of Appeals also cited Rob’s article, but deemed itself bound by case precedent to uphold the government’s action. It was the latter decision the U.S. Supreme Court declined to review.

The result in Upstate Citizens suggests that even with the addition of Justices Alito and Gorsuch, Justice Thomas remains the only consistent originalist on the court.

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 show that the ratifiers understood presidential electors were to exercise their own judgment when voting.

Probably the most-quoted statement from the public debate is from Alexander Hamilton’s Federalist No. 68:

A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations. . . . And as the electors, chosen in each State, are to assemble and vote in the State in which they are chosen, this detached and divided situation will expose them much less to heats and ferments, which might be communicated from them to the people, than if they were all to be convened at one time, in one place.

This is an important statement. However, for a number of reasons, we should not over-rely on The Federalist—or on Hamilton, for that matter—when reconstructing how the public understood the Constitution. Fortunately, there is a fair amount of additional evidence.

Some of this material consists of comments stating merely that the electors—rather than anyone else—would decide how to vote. In other words, they assume the electors would remain independent.

For example, Roger Sherman, a delegate at Philadelphia and a supporter of the Constitution, wrote that the president would be “re eligible as often as the electors shall think proper.” An essayist signing his name Civis Rusticus (Latin for “Country Citizen”) wrote that “the president was [chosen] by electors.” The Antifederalist author Centinel asserted that the state legislatures would “nominate the electors who choose the President of the United States.” The Antifederalist Candidus feared “the choice of President by a detached body of electors [as] dangerous and tending to bribery.”

In his second Fabius letter, John Dickinson—also described elector conduct in a way consistent only with free choice:

When these electors meet in their respective states, utterly vain will be the unreasonable suggestions derived for partiality. The electors may throw away their votes, mark, with public disappointment, some person improperly favored by them, or justly revering the duties of their office, dedicate their votes to the best interests of their country.

In Federalist No. 64, John Jay likewise implied elector choice and independence:

The convention . . . have directed the President to be chosen by select bodies of electors, to be deputed by the people for that express purpose; and they have committed the appointment of senators to the State legislatures . . .  As the select assemblies for choosing the President, as well as the State legislatures who appoint the senators, will in general be composed of the most enlightened and respectable citizens, there is reason to presume that their attention and their votes will be directed to those men only who have become the most distinguished by their abilities and virtue, and in whom the people perceive just grounds for confidence.

Some participants emphasized that electors would remain independent because the Constitution would protect them from outside influence. At the North Carolina ratifying convention, James Iredell, later a justice of the U.S. Supreme Court, spoke to the issue in a slightly different context:

Nothing is more necessary than to prevent every danger of influence. Had the time of election been different in different states, the electors chosen in one state might have gone from state to state, and conferred with the other electors, and the election might have been thus carried on under undue influence. But by this provision, the electors must meet in the different states on the same day, and cannot confer together. They may not even know who are the electors in the other states. There can be, therefore, no kind of combination. It is probable that the man who is the object of the choice of thirteen different states, the electors in each voting unconnectedly with the rest, must be a person who possesses, in a high degree, the confidence and respect of his country.

Advocates of the Constitution sometimes promoted the Electoral College as representing a viewpoint all its own rather than as reflecting the will of others. Hence Hamilton’s observation in Federalist No. 60:

The House of Representatives being to be elected immediately by the people, the Senate by the State legislatures, the President by electors chosen for that purpose by the people, there would be little probability of a common interest to cement these different branches in a predilection for any particular class of electors.

Some participants discussed how electors might be appointed—whether by the state legislatures or the people. For example, an essayist styled A Democratic Federalist wrote, “our federal Representatives will be chosen by the votes of the people themselves. The Electors of the President and Vice President of the union may also, by laws of the separate states, be put on the same footing.”

Yet such discussions of appointment were not accompanied by claims that those who made the appointments would dictate the electors’ votes. To be sure, William Davie, another Philadelphia delegate, said at the North Carolina ratifying convention that “The election of the executive is in some measure under the control of the legislatures of the states, the electors being appointed under their direction.” But “in some measure under the control” does not mean “wholly dictate.”

Possibly the closest anyone came to suggesting the legislatures would direct electors’ votes was a comment by Increase Sumner at the Massachusetts ratifying convention: “The President is to be chosen by electors under the regulation of the state legislature.” However, it is unclear what Sumner meant by “regulation.” He could be referring merely to the fact that the legislature would “regulate” how electors were appointed.

For those most part, moreover, participants worded their statements in ways that avoided any suggestions that electors’ votes could be controlled. In arguing for the Constitution, One of the People declared:

By the constitution, the president is to be chosen by ninety-one electors, each having one vote of this number . . . The constitution also admits of the people choosing the electors, so that the electors may be only one remove from the people . . .”

Note how this is phrased: (1) the electors choose the president, (2) the people may choose the electors, and if so (3) the choice of the president will be “only one remove from [not “determined by”] the people.”

At the Massachusetts ratifying convention Thomas Thacher asserted “The President is chosen by the electors, who are appointed by the people.” And in North Carolina Iredell argued that “the President is of a very different nature from a monarch. He is to be chosen by electors appointed by the people.” Again, observe the difference between appointment and choice of the president.

A final point: When crafting the Electoral College, the framers were careful to minimize opportunities for collusion, intrigue, or “influence.” As James Iredell observed in the extract quoted above, one element of the framers’ plan was to allow Congress to appoint a day for appointment of electors and another day for voting. In each case, however, “the Day shall be the same throughout the United States.” Article II, Section 1, Clause 4.

In 2016, the uniform day for the appointment of electors established by Congress was November 8. But Colorado authorities removed an elector and appointed in his alleged successor on December 19—manifestly not the same day as November 8.

Not only did this violate the uniform day rule, but it was a classic example of the kind of political maneuvering the rule was designed to prevent.