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Cuomo’s Claim that capping SALT deductions is unconstitutional is wrong

Cuomo’s Claim that capping SALT deductions is unconstitutional is wrong

This post first appeared in The Hill on January 30, 2018.

Some leading proponents of centralized federal power have caught that ole-time states’-rights religion.

New York Governor Andrew Cuomo, for example, has been a fervid defender of ObamaCare and other congressional programs invading traditional areas of state control. But, he says, Congress violated the rules of federalism when its new tax law capped income tax deductions for state and local taxes paid (SALT deductions).

Are Cuomo and his allies correct? Does the Constitution require Congress to include SALT deductions in its income tax laws?

The Constitution’s actual language does not say so.

Some cite a 1985 speech by the late Senator Daniel Patrick Moynihan (D.-N.Y). arguing for the SALT deduction. But that particular speech is cast in generalities, and does little to address specific constitutional questions.

They also point to Controller v. Wynn, a 2015 case in which the Supreme Court struck down a Maryland law taxing out-of-state income. But that case centered on interstate commerce issues not present in the new tax law.

Still others contend that the original Constitution banned income taxes until the Sixteenth Amendment approved them, and that amendment would not have been approved unless it implicitly required SALT deductions. For several different reasons, however, this argument is extraordinarily weak.

First, its initial premise is wrong: The original Constitution did not ban income taxes. On the contrary, it granted Congress broad authority to impose “direct taxes,” including income taxes. The only restriction was that if Congress imposed a direct tax it had to divide the expected revenues among the states by population. The Sixteenth Amendment eliminated that restriction, but Congress always had enjoyed power to impose an income tax.

Second, cited evidence for the founders’ supposed anti-income tax view actually cuts in the opposite direction. According to one Cuomo ally, “It was feared that the new federal income tax would ‘monopolize’ all of the country’s resources, leaving little money left in state coffers … Alexander Hamilton outlined this precise fear as early as the 1780s, in Federalist Paper No. 31.”

What the writer fails to mention is this fear arose chiefly among the Constitution’s opponents, and that Hamilton “outlined” it only to rebut it. Specifically, Hamilton pointed out that the Constitution tasked the federal government with national defense and internal order—and that because it was impossible to predict how much revenue would be needed for such functions, additional limits would be unworkable.

For better or worse, most of the founders agreed with Hamilton. They repelled efforts to further curtail Congress’s taxing authority.

Finally, there is little basis to the claim that, “the 16th Amendment likely would not have been ratified without SALT deductions in mind.”

When constitutional language is unclear or exact definitions uncertain, courts may clarify the terms by examining common practices and representations considered part of the “ratification bargain.” But the presence of SALT deductions in short-lived tax bills in 1862 or 1894 tells us little about how the ratifiers understood the Sixteenth Amendment decades later. Moreover, on those rare occasions when legislatures or conventions ratify an unclear measure on the basis of particular meanings, they can say so — which, in the case of the Sixteenth Amendment, they apparently did not.

More importantly, the Sixteenth Amendment is not ambiguous or uncertain. It is straightforward and clear: “The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.”

Where in this amendment, pray tell, lurks any mandatory SALT deduction?

Opponents of the new tax law are right to be concerned about federal overreaching, but they are barking up the wrong tree. They are inventing a fictional limit on federal authority while ignoring real ones.

For example, when drafting the Affordable Care Act Congress permitted the Senate to insert economic regulations in a tax bill, thereby violating an explicit constitutional rule called the Origination Clause. That violation has not induced Cuomo and his allies to withhold their support. They also have failed to object when Congress ignores other constitutional limits on its powers.

Governor Cuomo and his allies should honor the Constitution’s real restrictions on federal power. When arguing constitutional questions, however, they should not invent non-existent ones.

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

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

This article first appeared in The Hill on January 24, 2018.

Opponents of education reform often ask the courts to void programs of school choice.

They commonly claim that state constitutional provisions banning “sectarian” aid prohibit choice programs that include religious schools. Opponents won on this basis in a 2015 case, in which Colorado’s highest court struck down a voucher program because it included religious schools. (That decision was vacated recently.) A somewhat similar case is now pending in Montana.

Most of the “anti-sectarian” bans date from the 19th century. The Colorado provision, for example, became effective with ratification of that state’s constitution in 1876. The Nevada ban was added to that state’s 1864 constitution in 1880. The Montana clause is a 1972 re-enactment of one adopted in 1889.

Advocates and opponents of school choice have tussled for decades over the validity of these clauses. Somewhat misleadingly, they often are called “Blaine provisions” because of superficial similarities to a federal constitutional amendment proposed in 1875 by prominent politician James G. Blaine.

Thus far, the legal issues surrounding Blaine provisions have been clouded. However, historical research published this month in the scholarly journal Federalist Society Review likely will change that. The new findings show that “anti-sectarian” clauses — at least those adopted in the 19th century — almost certainly violate the U.S. Constitution as the Supreme Court now interprets it.

The new findings tell us that both advocates and opponents were operating from misunderstandings that made the constitutional issue seem harder than it is.

Advocates of school choice traditionally claim that when 19th-century lawmakers banned aid to “sectarian schools,” they really meant “Catholic schools.” Discrimination against some religions in favor of others, they contend, violates the First Amendment’s requirement that government treat religions equally.

Almost everyone agrees that the First Amendment requires government to treat religions equally, but advocates cannot always show direct connections between anti-Catholic sentiment and particular state constitutions.

School choice opponents traditionally respond that those who adopted 19th century constitutions understood “sectarian” as meaning merely “religious.” They argue that by banning aid to “sectarian” schools, states are maintaining a healthy separation from all religions equally. The Colorado Supreme Court took this position in its 2015 case.

So I undertook to learn the facts: What did 19th century constitution-writers really mean when they barred aid for “sectarian” purposes?

In quest of an answer I reviewed 19th century state constitutions and constitutional documents. I examined all relevant definitions in ten 19th century dictionaries. And I collected hundreds of contemporaneous newspaper articles from states throughout the country.

Here’s what I learned:

  • In the 19th century, “sectarian” never meant merely “religious.” It always referred to a particular kind of viewpoint.
  • Its principal use was as an insult. It was employed to tar people and views seen as narrow-minded or out of the mainstream. Nineteenth century writers, speakers, and political activists used “sectarian” in much the same way their modern counterparts employ the term “extremist.”
  • Mainstream Protestantism, which was then dominant in America, was almost never viewed as sectarian. That is why administrators prescribed reading the “non-sectarian” King James Version of the Bible in preference to “sectarian” scriptures favored by other religious groups.
  • Catholics frequently were attacked as “sectarians,” but so also were other unpopular groups: Mormons, Muslims, Jews, and even some Protestants perceived as overly-zealous.

Thus, the core purpose of the bans on “sectarian” aid was to require state officials to discriminate against minority and unpopular religions.

How did the states think they could get away with this? Because the Supreme Court had not yet determined that the Constitution requires states to follow the same rules of religious neutrality that regulate the federal government.

Last year, the Supreme Court found a similar state constitutional provisionpartially unconstitutional, although that case did not involve a school choice program. Moreover, it ordered the Colorado tribunal to re-examine its own decision.

Although for political reasons the Colorado case is unlikely to continue, within a few years, the Supreme Court probably will be confronted with the question of how state “anti-sectarian” clauses impact school choice programs.

These new findings suggest the court will find his kind of state discrimination flagrantly 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.

Where the Constitution’s Word “Convention” Came From

Where the Constitution’s Word “Convention” Came From

“The Congress . . . shall call a Convention for proposing Amendments, which, in either Case, shall be valid . . . when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof . . . ” U.S. Constitution, Article V

“The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.”                                 U.S. Constitution, Article VII

The late Phyllis Schlafly, when opposing a convention for proposing amendments, repeatedly likened it to the Republican and Democratic National Conventions. The idea, apparently, was to conjure up images of the chaotic mob scenes we have seen on television.

By so doing, Schlafly committed the common fallacy of anachronism: reading into history or a historical text the meanings and values of another time. The most common kind of anachronism is transferring a modern notion into a time or text when things were quite different—as if a scriptwriter for an old Western movie had John Wayne check his smart phone.

Anachronism can lead to grotesque distortion of the truth: In fact, a convention for proposing amendments is almost as different from a national party convention as the eye of a person is from the eye of a hurricane.

The Constitution uses the term convention three times. It appears twice in Article V and once in Article VII (the ratification provision). The “convention for proposing amendments” refers to an interstate gathering. The other two are assemblies within individual states.

We know from prior and subsequent practice how these conventions are chosen. The in-state gatherings consist of delegates directly elected by the people in pre-set geographical districts. The interstate gathering is a diplomatic gathering of representatives of the state legislatures of the kind called a “convention of the states.”

Schlafly did her best to deny that a convention for proposing amendments is a “convention of the states.” But the evidence is both uncontradicted and overwhelming, and has been confirmed by the U.S. Supreme Court. Myths to the contrary were promoted by a disinformation campaign fostered in academic literature and the press during the 1960s, ‘70s, and ‘80s by establishment liberals who opposed amendments to reduce federal power.

Prior to and during the Founding Era, Americans struggled with what to call ad hoc meetings of these kinds. They were not legislatures, because they were temporary and selected outside the usual legislative procedures. So Americans dubbed them with three different words: congress, committee, and convention.

Congress derives from Latin. It means “a walking together.” Before 1775, it referred to a diplomatic meeting of delegations from different governments. Thus, it was a natural term for a conclave among colonies or states. There was a 1754 Albany Congress, a 1765 Stamp Act Congress, the First Continental Congress (1774), and so forth. New York created a “provincial congress” that administered affairs after the colonial legislature was disbanded and until Independence was declared. The name congress reflected the fact that delegates were elected by towns or counties.

Beginning in 1775 the Second Continental Congress became a quasi-permanent legislative body. In 1781 it was succeeded by the Confederation Congress and in 1789 by the Federal Congress. Application of “congress” to the federal legislature discouraged people from applying it to other assemblies.

A small convention of states sometimes was called a committee. (This term, also, is Latin: the verb committere means to commit to, entrust to.) Further, the word could mean a delegation sent to a convention of states. But these “committees” were easy to confuse with committees within other assemblies, as in “the convention’s rules committee” or “the ways and means committee of the legislature.”

Convention (from the Latin convenire, to come together) originally signified only a meeting. However, “convention” became the name of a policy-making body in Scottish Presbyterian practice, and during the constitutional crises of 1660 and 1689 the English called their emergency assemblies “Convention Parliaments.” In the latter year, Americans began to apply the word to temporary “congresses” and to emergency assemblies.

Thus, throughout much of the 18th century, Americans might call the same kind of gathering by several different words. After Independence was declared but before election of the state legislature under the new state constitution, New York was governed by a “Convention of Representatives.” Beginning in January, 1788, the state convention consisted of members of the new state legislature, which had not yet been formally convened.

To add to the confusion, the identical assembly might be referred to by several names. The records of the New York Provincial Congress show it addressing the Continental Congress as the “continental convention” and the Continental Congress addressing the Provincial Congress as the “provincial convention.”

Fortunately, by the time the Constitution was written, this verbal confusion had been pretty much sorted out.  Temporary in-state conclaves increasingly were called conventions. Interstate meetings were nearly always called “conventions” rather than committees or congresses.

That’s why the framers selected the word “convention” rather than some other term for insertion in Articles V and VII.

Restoration of the Rule of Law: The Link Between Your Increased Wealth and Obama’s Departure

Restoration of the Rule of Law: The Link Between Your Increased Wealth and Obama’s Departure

This article originally appeared in The Hill.

If you are like me, your retirement account rose substantially in value during 2017.

The end of the stubborn economic lag of the Obama years is a signal event affecting the life every American. It’s not just the stock market that’s up, but GDP and job growth as well.

Presumably because it would make the Trump administration look good, the mainstream media have given this development relatively little attention—as illustrated by the New York Times’ non-treatment in its 2017 Year in Review. (The Denver Post’s December 31 print edition review provides another example.) When the mainstream media have discussed the economy outside their business pages, they sometimes have done so only to belittle the progress made.

On the other side of the political divide, President Trump is (of course) claiming credit. No doubt he is entitled to some.

But let’s face it: The election of almost any of the major presidential candidates other than avowed socialist Bernie Sanders probably would have triggered a similar boom. It might have been greater under a President Rubio or President Kasich or less under a President Clinton. But the upsurge would have come because its principal cause has not been who was elected, but who has departed.

Those departed are Barack Obama and an administration comprised largely soft-totalitarian “progressives” who showed little respect for the rule of law during their eight-year reign.

Economists across the political spectrum agree that the rule of law is key to a healthy economy, particularly in developed countries. When legal rules are clear and predictable, investors are more willing to risk their capital than when rules are fuzzy and subject to random change.

The American Founders recognized this. One reason they adopted the Constitution was to strengthen the rule of law. Under the Articles of Confederation (1781 – 1789) legal stability was jeopardized by demagogic policies pursued in some of the states. Partly as a result, the United States in the 1780s was mired in an economic depression.

James Madison wrote in Federalist No. 44:

The sober people of America are weary of the fluctuating policy which has directed the public councils. They have seen with regret and indignation that sudden changes and legislative interferences, in cases affecting personal rights, become jobs [i.e., opportunities for unfair gain] in the hands of enterprising and influential speculators, and snares to the more-industrious and less informed part of the community. They have seen, too, that one legislative interference is but the first link of a long chain of repetitions, every subsequent interference being naturally produced by the effects of the preceding. They very rightly infer, therefore, that some thorough reform is wanting, which will banish speculations on public measures, inspire a general prudence and industry, and give a regular course to the business of society.

Madison focused on legislative violations of the rule of law. The Obama years saw some of these, including largely inscrutable legislation that mauled our health care and financial systems.

However, most of the threats to the rule of law came from executive action: a frenzy of new economic regulations; illegal immigration orders; unwarranted privileges to the politically-powerful, such as exemption from Obamacare mandates; the use of federal grants to skew scientific research; IRS attacks on dissident groups; subsidies to some businesses at the expense of others; and increased surveillance of political opponents.

Of course, the Obama administration was not the first presidency to threaten the rule of law. But most other serious presidential attacks occurred during wartime. Moreover, the Obama administration’s assault was unusually comprehensive—far more so than, for example, sporadic efforts by prior presidents to turn the IRS against political enemies.

President Trump also has expressed an unfortunate preference for distorting the legal playing field. But so far his administration has done nothing comparable to the Obama presidency’s third-world-style behavior.

No wonder why so many Americans are breathing a sigh of relief—and then following it up with concrete investments in our country’s future.

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.