A brief look at the chasm separating Chiafalo v. Washington‘s originalist interpretation of and the Founders’ intent regarding the Electoral College.
In Chiafalo v. Washington, the Supreme Court ruled today by a 7-2 vote that, in the light of “our whole experience as a Nation,” States may subject “faithless electors” — members of the Electoral College who vote for a candidate other than the one to whom they are pledged — to statutory penalties such as a monetary fine. The Framers may have expected electors to make independent judgments, but, alas! “[w]hether by choice or accident, the Framers did not reduce their thoughts about electors’ discretion to the printed page.” And “established practice,” developed since the 19th century, authorizes States to reduce electors to a pass-through mechanism. As early as 1864, the English barrister J.F. Stephen had observed acidly that “the election of the President by electors chosen by the people at large was supposed to be a security for the appointment of men of high character and ability. The security turned out to be worthless, inasmuch as for many years past, the electors have always been so completely pledged before their election that they might as well be dispensed with altogether.”
Of course “faithlessness” is ambiguous here; fidelity to the State-enforced pledge might be seen as infidelity to the original conception of the Electoral College itself, which as Stephen noted was intended by its creators and explained to the ratifiers as an independent body of notables deliberating in the public interest. Indeed, the whole line of development that culminates in Chiafalo would certainly startle the members of the Convention. As Max Farrand said of the Electoral College scheme in 1913, “of all things done in the convention the members seemed to have been prouder of that than of any other, and they seemed to regard it as having solved the problem for any country of how to choose a chief magistrate.”
If originalism is “our law,” it is apparently so in some very special, epicyclical sense that does not bar the Nation’s developing norms and traditions from so “informing” the interpretation of the written law as to essentially reverse the Framers’ publicly stated expectations about a central mechanism of the constitutional plan. One may say all sort of things to square such a result with originalism — heroic work can be and has been done with concepts like “construction” and “liquidation,” and the Court gestures briefly at the latter phrase — but the sheer amount of work one has to do merely raises questions about the value of the originalist enterprise itself, just as one might question the value of a car that must constantly be repaired. In a world in which post hoc developments can undo what was, in any rationally purposive sense, thought to be a linchpin of the constitutional plan, it is at best unclear what the force of calling oneself an “originalist” really is, or why anyone should care.
Adrian Vermeule