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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.

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.

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

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

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

The Constitution initially provided that after the choice of the president the person with the most electoral votes would become vice president. This might be the second-highest electoral vote-getter, but not necessarily: If the election was thrown into the House of Representatives because no candidate had won a majority of the electoral votes, the House could elect any of the five top vote getters. If the House did not elect the top vote getter, then that person would become vice president.

There was some sense behind this system. Many founders were concerned about the risk of a “cabal”—informally organized political intrigue—between the president and the powerful, relatively small Senate. Installing the president’s leading rival as vice president, and therefore as the Senate’s presiding officer, might check that risk.

Nevertheless, chaos during the 1800 election persuaded the founding generation to add the Twelfth Amendment, providing that electors would vote separately for president and vice president. The Constitution’s resulting structure is as follows:

* Article II, Section 1, Clause 1: term of office.
* Article II, Section 1, Clause 2: appointment, number, and qualification of electors.
* The Twelfth Amendment: manner of holding election. (This phrase is explained below.)
* Article II, Section 1, Clause 4: time of election.
* Article II, Section 1, Clause 5 & Twelfth Amendment: qualifications of president and vice president.

Rather than treat each of these in order, it is easier to follow the structure of election rules as the founding generation thought about them.

During the founding era, election rules were said to fix the manner of election (sometimes called the “mode of election”). This term embraced the following five categories:

(1) The time of election, including (a) the term of office and (b) the time for voting.
(2) The qualifications of the voters.
(3) The qualifications of the candidates.
(4) The place of election, including (a) the boundaries of election districts and (b) the location of the polls.
(5) The manner of holding elections. The framers coined this phrase to cover all the administrative details in the “manner of election” other than time, qualifications, and place. It included the required margin of victory (majority or plurality), how votes were cast, oaths, vote counting and reporting, and election-day conduct. “Manner of holding” also embraced the number of election stages—one stage for direct elections, and two or more for indirect elections.

The “manner of holding elections” did not include the kind of omnibus campaign regulation Congress presumes to impose today. Campaign regulation was a state power. The modern Supreme Court says that “manner of holding” includes campaign regulations, but the court has never adequately supported this assertion.

In both Britain and America, the manner of election was governed by statute under the general police power. However, the Constitution did not leave the entire manner of election to either the state legislatures or to Congress. The Constitution created a two-or-three stage presidential election system and then prescribed at least some rules for each stage.

Time of election. Article II, Section 1, Clause 1 specifies that the terms of the president and vice president are four years. (This was supplemented by the Twentieth Amendment, which fixed days of beginning and ending.) Otherwise, the timing of elections is left to state law, except that Congress may fix a uniform day for choice of electors (Stage #1) and for their balloting (Stage #2).

Qualifications of Voters. For Stage #1, the Constitution allows the states to set voter qualifications, although this rule has been modified by several constitutional amendments and a host of Supreme Court rulings. The agency for decision on this and other issues is the state legislature.  Founding-era practice (as well as subsequent court decision) tells us that this use of “legislature” refers to the state entire lawmaking apparatus, including any roles for the governor or popular referenda. Thus, the use of “legislature” in the case of elections is different from the use of that word in some other parts of the Constitution, such as Article V, where it means only the representative assembly itself.

The Constitution also left to the state legislatures the qualifications for presidential electors, except that they cannot be members of Congress or federal officeholders. Stage 3 is the congressional run-off, so the voter qualification at this stage is to be a member of the House (to vote for president) or the Senate (to vote for vice president).

Qualifications of Candidates. The president and vice president must be natural born citizens, residents of the U.S. for the prior 14 years, and at least 35 years old. Unlike lawmakers in most states, the framers specified no qualifications based on property, race, or gender. This was a conscious decision.

The place of election. With one exception, the place of election at Stages 1 and 2, was left to the state legislatures. (After the Constitution was ratified, the states adopted a mixture of at-large and district voting.) The exception was that presidential electors were to meet in their respective states rather than congregate together. That was to minimize the risk of mob or “stampeding” behavior. Stage 3 congressional runoffs are held in the national capital.

The manner of holding elections. State legislatures generally determine Stage 1 procedures. They may reserve the power to choose electors or delegate it to the people. They decide whether the rule of decision is a majority or a plurality. One writer has suggested that the founders expected the states to adopt a majority rule, but I have not found much evidence to support this.

Similarly, the states determine the method of voting. During the founding era, there were four in common use: (1) viva voce, (2) show of hands, (3) polling (in which voters filed past a registrar, verified their identity, and stated their preference), and (4) “ballot”—which invariably meant secret ballot.

Most Stage 2 procedures also are set by state law, but the Constitution limits state discretion more than at Stage 1. The electors’ voting must be by ballot. Each elector votes once for president and once for vice president; of those two candidates at least one must from another state. The latter rule was adopted for two reasons: (1) to prevent large states from dominating the electors and (2) the theory that the second choice after a “favorite son” was likely to be the better candidate.

The electors are supposed to count the ballots, list how many votes for each candidate, sign and certify the lists, and transmit them to the president of the Senate at the national capital. At a joint session of Congress, the president of the Senate opens the certificates and arranges for a count. The rule of victory at this level is a majority of electors appointed. If no candidate receives a majority, a congressional run-off is necessary.

The Constitution prescribes Stage 3 run-off procedures in even greater detail. If it appears that no candidate for president commands a majority of electoral votes, the House of Representatives must “choose immediately, by ballot, the President” from among the top three vote getters. (The Twelfth Amendment changed the number from five to three.) The quorum is at least one Representative present from each of two thirds of the states. Voting is by state delegations, on a one state/one vote basis. Election is by a majority of all states, not merely a  majority of states present.

If no candidate wins a majority of the electors for vice president, the Senate selects from the top two candidates, with a quorum of two thirds and the rule of victory being a majority of “the whole number of Senators.”

Each part of this intricate system was adopted for good reasons. For example, voting by states in the House prevents a few populous states from dominating the election. The quorum of two thirds and the majority-to-win requirement assures that the victor enjoys wide popular support.

Next time: The electoral college in constitutional context.

The most ‘underrated’ founder’s influence on America’s Constitution

The most ‘underrated’ founder’s influence on America’s Constitution

This article first appeared in The Hill.

This month marks the 250th anniversary of John Dickinson’s Letters from a Farmer in Pennsylvania — the landmark series of newspaper op-eds that laid out the colonial case against taxation without representation.

The letters were widely republished and made Dickinson for a time the most famous American in the world, second only to Ben Franklin.

The Farmer Letters should not, however, overshadow Dickinson’s immediate impact on the U.S. Constitution. The Constitution bears a much closer resemblance to his vision than to the pre-convention ideas of more celebrated founders.

Dickinson’s influence survives today in the structure of “the Hill” — that is, of Congress.

For example, Dickinson suggested the Great Compromise — equal representation of states in the Senate and “proportional” representation in the House — long before the convention adopted it. It also was Dickinson’s idea to moderate “proportional” representation by allotting to every state, no matter how small, at least one representative.

The House of Representatives enjoys the exclusive right of originating revenue bills only because John Dickinson, in company with Virginia’s Edmund Randolph, fought for it. They had to overcome the resistance of several skeptics, including James Madison.

Like most of the Founders, Dickinson opposed slavery. Unlike most of those convention delegates who had owned slaves, however, Dickinson already had emancipated his. Although he favored an immediate end to the international slave trade, he also recognized political reality. Thus, he helped negotiate the compromise by which Congress could abolish the slave trade, but only after 20 years.

Dickinson moved to permit, but not require, Congress to create federal courts below the Supreme Court and (despite some initial doubts) to allow Congress to impeach and remove the president.

The Constitution’s organization of the Senate largely followed Dickinson’s ideas. He suggested that Senators represent the states equally and be selected by state legislatures for long, staggered terms. He hoped the Senate would serve as a republican analogue of Britain’s upper chamber, protecting the states as the House of Lords protected the British aristocracy.

Just as important was Dickinson’s influence on American federalism. In pre-Independence writings, he outlined his ideal division of powers between the colonies and the central government in London. The division later ordained by the Constitution between the states and the federal government was remarkably similar.

On this subject of the federal-state balance of power, Dickinson’s views occupied the middle ground between “states rights” advocates such as Robert Yates of New York and centralizers such as Alexander Hamilton and (at that time) Madison. Dickinson proposed the Constitution grant the new government a generous list of powers while reserving all other authority to the states. His constitutional plans dated June 18, 1787 contain prototypes of Article I, Section 8, the constitutional provision enumerating most congressional powers. His June 18 plans also feature prototypes of the Constitution’s Necessary and Proper Clause, which recognizes Congress’s authority to pass laws to carry other powers into execution.

After the convention adjourned, Dickinson continued to further the Constitution’s cause. He penned nine op-eds known as the Letters of Fabius. They responded to the opposition charge that the Constitution would promote aristocracy. During the convention Dickinson had predicted this charge and warned other delegates to forearm themselves against it.

Modern constitutional interpreters often rely on statements by Founders who occupied the extremes of the political spectrum. Advocates of big government typically resort to Hamilton (who played only a minor role at the convention) and advocates of small government rely on Jefferson (who wasn’t even there). This practice overlooks the moderates who actually pulled the Constitution together and secured its ratification. Of these, Dickinson was the most significant.

Forrest McDonald, America’s greatest 20th century constitutional historian, characterized Dickinson as the “the most underrated of all the founders.” Indeed, it was not until Dickinson’s own convention notes were rediscovered in the early 1980s that his contributions became better understood even among scholars.

This much is clear: John Dickinson deserves much more of our national gratitude than we have given him.