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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? – 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 a person seeking office as an elector to pledge to support the nominee of his party.

Laws limiting the discretion of electors are justified as part of the state’s power to “appoint” electors. This justification is not airtight, however, because the appointment of an officer and directing his or her vote are not quite the same thing. For example, the people have power to appoint (elect) members of Congress and other officials. The people are right to expect successful candidates to honor their promises within practical limits. But the people have no constitutional power to direct congressional votes.

Consider also the rules under which Congress, state legislatures, and conventions exercise their constitutional powers in the amendment process. States have repeatedly passed laws attempting to control the actions of those assemblies, but the courts have repeatedly struck them down. The courts’ holdings are consistent with the founders’ understanding of how legislatures and conventions worked: Lawmakers could follow their consciences and convention delegates enjoyed significant discretion within the scope of the convention call. Indeed, if some delegates who had run for their state ratifying conventions as antifederalists had not voted for the Constitution once compromise had been reached, the Constitution would not have been ratified.

As explained below, the evidence suggests that the scope of a presidential elector’s constitutional discretion is even greater than that of a convention delegate.

Before proceeding further, however, let’s dispose of one issue. Some see significance in the fact that the original Constitution was ratified before the rise of national party voting, while the 12th amendment was approved in 1804 after parties became the norm. They suggest, therefore, that the meaning and expectations for elector voting under the 12th amendment might be different from those under the original Constitution.

It is, of course, true that the 12th amendment changed some aspects of the electoral system. But the language relevant to elector discretion charged hardly at all.

The original Constitution provided:

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 did not alter the wording of the first part of this selection, and its replacement for the second part was almost identical to the original: “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.”

This near-identity cuts against the idea that there was less elector discretion under the 12th amendment than under the original Constitution. Standard rules of legal interpretation hold that when language does not change, meaning does not change. Party pressures might discipline electors more after 1804 than before, but electors had no more legal obligation to be disciplined after 1804 than before.

It follows that when construing the present constitutional language, we are fully justified in relying on the usual sources employed in construing the original Constitution.

One source of that kind is how contemporaries normally understood words and phrases used in the text.

In both the original and 12th amendment versions, the electors were to vote by ballot. To the founding generation, this invariably meant secret ballot. The whole point of a secret ballot is to hide the elector’s choice so to ensure that choice is free. But free choice is inconsistent with the state telling an elector how to vote.

Another important word in the text is elector. Eighteenth century general dictionaries define an elector as a person who does the choosing. Nathan Bailey’s 1765 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 kinred definitions.

Eighteenth century legal dictionaries did not define “elector,” but they did describe “election”—and with even clearer implications. The most popular law dictionary in America, that of Giles Jacob, 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.

Another important source of original meaning are practices of which the founding generation was aware. One was the election of members of Parliament in Scotland. Members were not directly elected, as in England. Rather, they were elected by “commissioners” selected for that purpose by voters or 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 place that sent him.

Under the 1776 Maryland constitution, the state senate was selected 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.” Again, public expectation was that electors’ discretion would be unfettered.

The two leading precedents in the English speaking world both reinforced dictionary definitions: Electors were to think for themselves.

Now let’s turn to the Constitutional Convention. A key reason for adopting the Electoral College was to ensure the president’s independence from Congress and the states. Thus, James Wilson, who initially favored direct election of the president, shortly thereafter proposed an electoral college 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.”

Obviously, permitting the states to dictate electors’ votes would undercut that policy of independence from the states. This is one reason 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.”

Next time: The evidence on elector discretion from the debates over the Constitution’s ratification.

A RESPONSE TO A “LIVING CONSTITUTIONALIST”

A RESPONSE TO A “LIVING CONSTITUTIONALIST”

Bruce Ledewitz is a very smart man who teaches constitutional law at Duquesne University in Pennsylvania. He recently wrote an article for the Philadelphia Inquirer—also reproduced in other news outlets. In his article, he contends that the Supreme Court’s decision this year in Trinity Lutheran Church v. Comer discredited “originalism.” Originalism, of course, is the approach of interpreting the Constitution as the Founders adopted it.

Several leading originalists—including Professor Randy Barnett (Georgetown) and Professor Michael Ramsey (San Diego)—already have published good rejoinders.  I’ve been strongly urged to write one as well.

I normally avoid getting into arguments about what kind of interpretation is best. My focus is on researching the Constitution’s history and meaning rather than arguing about it.  However, I finally agreed to respond for one reason: I believe Professor Ledewitz’s article illustrates how even intelligent and mature law professors usually are unprepared for the tasks of writing and teaching about the Constitution.

Most law professors focus, both in study and teaching, on Supreme Court cases. Most know little about the Founding Era record. Most lack the historical training needed to assess that record. Very few have studied the law of the Founding Era. Very few are familiar with the materials the Founders studied during their education, especially the Greek and Roman classics. Exceedingly few law professors are competent in Latin, the Founders’ second language.

Finally, law professors often corrupt their understanding of the Constitution with their own political preferences—either by claiming it means whatever they want or by underestimating it because it doesn’t give them what they want. These problems afflict faculty even at the nation’s most prestigious law schools.

Following are excerpted passages from Professor Ledewitz’s article with a corrective response appended to each excerpt:

Professor Ledewitz: “It was probably always a mistake to take originalism seriously as a theory of constitutional interpretation.”

Answer: Professor Ledewitz apparently is unaware that, as explained below, “originalism” is merely the constitutional name for the method of documentary interpretation that has prevailed for centuries in the English and American judicial systems. Failing to take it seriously would be a far more radical change than I think even he would recommend.

Professor Ledewitz: “Originalism, or textualism as its great proponent, the late Justice Antonin Scalia, termed it, is the theory that constitutional provisions should be interpreted in accordance with their original public meaning.”

Answer: Textualism is not quite the same thing as originalism. Textualism focuses on the meaning of words while generally avoiding resort to materials generated during the legislative process. It is usually applied to the interpretation of statutes. Pure textualism is more defensible in modern statutory construction than in constitutional interpretation because legislative history is sometimes manipulated in ways that the Constitution’s background was not.

In its most precise form, originalism is the view that judges and other officials should be faithful to the Constitution the people actually ratified (as amended). Originalists believe that judges and other officials should avoid the temptation to substitute a “constitution” they might prefer for the actual, historical document.

Writers often use the phrases “original public meaning” and “intent of the framers” as shorthand for originalism. In the 18th century, the common shorthand for originalism was “finding the intent of the makers.” All those labels can be confusing. According to the rules prevailing when the Constitution was adopted (and today as well, as to almost all other documents), an interpreter tries to recover the understanding of the parties (ratifiers). If, because of insufficient or conflicting evidence the interpreter cannot do so, then he or she applies the original public meaning as a substitute.

Professor Ledewitz: “The theory never made any sense either as a matter of language or political theory and was premised on a nihilistic skepticism about the possibility of truth in political affairs.”

Answer: Whether one can obtain “truth in political affairs” is not really relevant to the issue of the meaning of a written constitution. One reason for putting the Constitution in writing was precisely to create a rule book to contain and civilize the tumult of politics.

Professor Ledewitz: “Nevertheless, originalism has achieved a real rhetorical dominance.”

Answer: He writes as if originalism were a recent development. But seeking “the intent of the makers” has been the prevailing Anglo-American legal method of interpretation for centuries. The Founders absorbed it from, among others, the 16th century legal scholar Edmund Plowden. During the 18th, 19th, and early 20th centuries it was the prevailing way of interpreting the Constitution. Originalism’s “rhetorical dominance” was achieved because of this history and also because (1) that is how we construe most other legal documents (certain real estate instruments partially excepted), (2) it is hard to justify the current double standard, and (3) non-originalists have failed to agree on principled alternatives.

Professor Ledewitz: “But, with the Trinity Lutheran Church decision on June 26, originalism as a theory can confidently be relegated to the historical ash heap. In Trinity Lutheran, Missouri excluded a church playground from a state reimbursement grant program toward the purchase of safe playground surfacing material. . . .The church won, 7-2. Given the safety issue and the nonreligious nature of the playground, the decision was certainly a sensible outcome. But, from the point of view of originalism, the decision was ridiculous.”

Answer: Courts may err in applying any theory of interpretation. Assuming the decision in Trinity Lutheran was wrong, Professor Ledewitz does not explain why one error should discredit a procedure that has served us for centuries.

Professor Ledewitz: “If there was a single principle that united most of the framers and supporters of the original Establishment Clause, it was the prohibition against the payment of public money to churches.”

Answer: This is incorrect. The primary principle underlying the Establishment Clause was that Congress must treat all religions impartially. The Clause did not extend to the states. Those seeking “disestablishment” at the state level opposed taxpayer subsidies to churches designed to promote particular religions. They did not object to paying a church for unrelated contractual obligations—the scenario in Trinity Lutheran. And they would have been outraged at Missouri’s practice of discriminating against churches generally.

Moreover, as Professor Barnett has pointed out, the part of the Constitution most relevant to Trinity Lutheran is the Fourteenth Amendment, not the First. This is because the Supreme Court has applied First Amendment principles to the states only because of language in the Fourteenth Amendment. Professor Ledewitz’s article is devoid of any discussion—or even any mention—of the Fourteenth Amendment.

Professor Ledewitz: “The historical absurdity of the decision is why only the two dissenters, Justices Sonia Sotomayor and Ruth Bader Ginsburg, discussed the history of the religion clauses. But, since those two justices are not originalists, their discussion must be considered merely opportunistic. There are no originalists on the court.”

Answer: It is poor practice to conclude from a single decision—even assuming that it was erroneous—that there are “no originalists on the court.” Justice Clarence Thomas has applied originalist jurisprudence to countless cases throughout his long tenure. Based on several cases in his first term, Justice Gorsuch also appears to be an originalist.

Professor Ledewitz: “Although no one bothered to say so in the decision, a departure from historical understanding was justified in the Trinity Lutheran case because the modern sense of unjust discrimination is much more robust than when the First Amendment was adopted and government funding of private activity is much more prevalent than in the 18th century, when such spending was largely unknown. What would not have struck the framers as unfair discrimination against religious believers looks like that to us.”

Answer: There are a number of problems with this statement. First, Missouri relied on a section of its state constitution (the “Blaine provision”) designed to discriminate against particular religions, notably Roman Catholicism. This violated the central principle of the Establishment Clause as understood by the Founders, not merely by us.

Also, as noted above, the actual amendment governing the case was the Fourteenth Amendment, which was adopted in 1868, not during the Founding Era. Discriminating against churches in distributing otherwise generally-available funding probably violates that Amendment’s Equal Protection Clause. To contend that Missouri’s practice was consistent with the Constitution, one must argue both that (1) the Establishment Clause does not apply to the states and (2) the Fourteenth Amendment permits discrimination against churches. Professor Ledewitz does not make those arguments.

Professor Ledewitz: “That is how the living constitution works. We apply constitutional principles in ways that make sense today. We do not clone the thinking of political leaders who faced vastly different circumstances. . . .”

Answer: Following the Constitution does not require us to “clone the thinking” of anyone. It requires only that we follow the meaning of the words in a controlling document. Courts do that sort of thing all the time. It’s their job.

Moreover, what are the “constitutional principles” Professor Ledewitz would have us apply? Are they principles that we make up as we go along? In that case, we are acting politically, not constitutionally.

Or does he mean we should derive our constitutional principles from the Constitution? But the Constitution embodies a number of basic principles, and they sometimes conflict. The framers and ratifiers carefully crafted the document’s language to balance those principles in specific ways. Originalist interpretation enables us to understand the results. Non-originalist judges and professors often insist on re-balancing principles to suit themselves rather than inquiring how the Constitution balances them.  In doing so, they are acting politically, not constitutionally.

Incidentally, the Founders were thoroughly familiar with judicial balancing. In some parts of the Constitution, such as the Fourth Amendment (“unreasonable searches and seizures”) they authorized it. Basic principles of legal interpretation tell us that where the text, or its legal meaning, do not authorize balancing, then judges have no authority to engage in it.

Professor Ledewitz: “The Trinity Lutheran decision does not mean that the cottage industry of originalism will shut down. The reason for its continuation is that originalism as a political matter never had anything to do with interpretive theory. The real purpose of originalism is to overturn the expansion of federal government power associated with the New Deal. . . . .”

Answer: An interpretive method that has endured for centuries cannot have been designed to overturn the New Deal of the 1930s. On the contrary, it was “living constitutionalism”—not originalism—that was fashioned for political ends. It was designed to offer a constitutional fig leaf for a federal coup d’etat. Not surprisingly, most people who study constitutional jurisprudence find the fig leaf transparent.

Professor Ledewitz: “Even the Republican majority in Congress does not understand the bill of goods it is being sold under the name of originalism. Included in the healthcare reform proposals being debated in the Senate are proposed national caps on pain and suffering in medical malpractice cases. Whatever one thinks of these proposals, they concern a problem national in scope that Congress should have the power to deal with. Certainly the framers of the Constitution, who were practical men intending to create a federal government with the necessary powers to deal with national issues, would agree with that if they were alive today. But, from the perspective of the 18th century, any such legislation would be unconstitutional as invasive of the reserved powers of the states.”

Answer: Professor Ledewitz is correct that some aspects of Republican federal tort reform proposals violate the Constitution’s meaning—a conclusion I have previously documented. However, he misunderstands how the Constitution’s enumerated power scheme was designed. The Founders did not give the federal government power to deal with every issue one might think “national in scope.” They were, indeed, practical men, and as such they recognized human activities of some kinds (e.g., religion, manufacturing) often affect others (commerce, foreign relations). But precisely because they were practical, they also recognized that sometimes the advantages of allowing Congress to legislate in all connected areas were outweighed by the disadvantages (e.g. the threat to liberty of centralized power).

Accordingly, the Constitution’s scheme of enumerated powers deliberately reserves certain potentially-national issues to the exclusive jurisdiction of the states. Most aspects of civil justice, including tort law, are in this category. Legitimate interstate action is still possible, however—through uniform state laws, interstate compacts, and, as a last resort, by constitutional amendment.

Professor Ledewitz: “As the Trinity Lutheran case shows, we need not be ruled from the grave. All of our law, but especially constitutional law, should be interpreted from our own perspective.”

Answer: Is Professor Ledewitz saying that judges should re-write laws to their liking simply because some or all of their sponsors are no longer around? That is a prescription for oligarchy—and the Constitution was designed to protect us against that.

Of course, Americans could have adopted a British-style unwritten (living) constitution. That would have permitted a sufficiently determined cabal of politicians and judges to change the rules. Although academia is filled with modern-day Tories who would be happier in such a system, most Americans, whatever they think of particular judicial holdings, seem quite content to have our Constitution fixed and in writing.

Under the Constitution, Regulating Marijuana is Mostly a State Concern

Under the Constitution, Regulating Marijuana is Mostly a State Concern

A growing number of states are defying the federal marijuana ban, not only by easing their own laws, but by actively cooperating with marijuana growing, processing, and use. Many contend that pot should be a state, rather than a federal, concern.

The U.S. Supreme Court has ruled otherwise. In Gonzales v. Raich (2005), the court held that under the Constitution, Congress may use its Commerce Power to ban even “window box” medical marijuana, whether permitted under state law or not.

The Commerce Power derives from two constitutional provisions: (1) the Commerce Clause, which grants Congress authority to “regulate Commerce . . . among the several States,” and (2) the Necessary and Proper Clause, which says Congress may “make all Laws which shall be necessary and proper for carrying into Execution” certain itemized grants—including the Commerce Clause.

In Gonzales, the court found that marijuana growing and use were economic activities. It then followed some 20th century cases that (contrary to earlier rulings) allowed Congress to use the Constitution’s Necessary and Proper Clause to regulate economic activities with “substantial effects” on interstate commerce.

Was the Court correct? Answering that question requires us to determine what the Constitution meant to those who adopted it. Even though the Founders did not discuss marijuana specifically, a vast array of sources tells us their answer. The sources include debates from the Constitution’s framing and ratification, and writings informing us how key constitutional phrases were used in legal documents.

All students of the Constitution know it splits authority between the states and the federal government. What many do not recognize is that it deliberately divides responsibility over some closely-connected activities. For example, the Founders often observed that commerce and domestic manufacturing are tightly related. Nevertheless, their Constitution granted power over several forms of commerce to Congress, but left authority over manufacturing to the states. The Founders divided authority this way because protecting liberty was a higher priority than regulatory coordination.

So the Supreme Court is wrong to conclude that because an activity “substantially affects” interstate commerce it follows that Congress may regulate it. Many activities, economic or not, substantially affect commerce without being constitutional targets for Congress.

When the Constitution was adopted, the phrase “regulate commerce” had well-understood content. It referred to laws governing mercantile trade and certain associated matters, such as tariff barriers, commercial finance, navigation, and marine insurance. It did not include other aspects of the economy. In fact, many of the Founders are on record as specifically assuring the public that Congress would have no jurisdiction over agriculture, manufacturing, land use, or (according to Chief Justice Marshall) “health laws of every description.”

Growing marijuana is, of course, a species of agriculture.  Processing is manufacturing. The ban on personal consumption is a health regulation. The Constitution places control over all those activities squarely within the state, not the federal, sphere.

So does Congress have any power over marijuana? Under a correct reading of the Constitution, the answer is, “Only some.” The Commerce Clause allows Congress to restrict or ban the marijuana trade across national and state boundaries. Moreover, the Necessary and Proper Clause recognizes some additional authority.

The background and history of the Necessary and Proper Clause establish that the provision is not a grant of authority to Congress, but merely a rule of interpretation. The Clause does, however, acknowledge Congress’s prerogative to pass certain laws “incidental” to regulating commerce. For example, if Congress prohibits interstate trade in marijuana, it might also require interstate shippers to disclose whether their cargoes included the substance—but only if disclosure is reasonably necessary to enforcing the congressional ban.

However, incidental powers do not extend to comprehensive regulation of areas, such as agriculture or manufacturing, reserved to the states.

In sum: Under the original Constitution as ratified by the American people, Congress may regulate, or even ban, marijuana from interstate and foreign commerce. It also may exercise some incidental authority. But it may not constitutionally regulate or prohibit in-state growing, processing, or use of marijuana. For better or worse, those are exclusive concerns of the citizens of the several states.

Rob Natelson served as a law professor for 25 years, teaching, among other courses, constitutional law and First Amendment. He is the author of The Original Constitution: What It Actually Said and Meant. He is a Senior Fellow in Constitutional Jurisprudence at the Independence Institute in Denver.