Chiafalo Rejects Original Expectations in Favor of Original Meaning

Justice Kagan articulates why most originalists favor original public meaning, over original expectations originalism.

|The Volokh Conspiracy |

Justice Kagan's majority opinion in Chiafalo v. Washignton is thoroughly originalist. Indeed, she articulates with clarity the doctrine of original public meaning originalism. And she forcefully rejects the doctrine of original expectations originalism.

In this case, the electors relied on the "expectations" of the Framers, with respect to the Electoral College. Justice Kagan offered some significant evidence from their briefs:

The Electors and their amici object that the Framers using those words expected the Electors' votes to reflect their own judgments. Hamilton praised the Constitution for entrusting the Presidency to "men most capable of analyzing the qualities" needed for the office, who would make their choices "under circumstances favorable to deliberation." The Federalist No. 68. So too, John Jay predicted that the Electoral College would "be composed of the most enlightened and respectable citizens," whose choices would reflect "discretion and discernment." The Federalist No. 64.

Hamilton and Jay! Pretty authoritative sources. Just last week in Seila Law, the Court grappled with the weight of Hamilton's position with respect to the removal power. (I think Kagan's dissent adopted an all-too-common misreading of Federalist No. 77). But here, Hamilton's expectations about the ideal electors cannot carry the day. Why? Kagan explains that text, not intentions matters:

But even assuming other Framers shared that outlook, it would not be enough. Whether by choice or accident, the Framers did not reduce their thoughts about electors' discretion to the printed page. All that they put down about the electors was what we have said: that the States would appoint them, and that they would meet and cast ballots to send to the Capitol. Those sparse instructions took no position on how independent from—or how faithful to—party and popular preferences the electors' votes should be.

The written word on the "printed page," matters, not the "thoughts" of the Framers. Later in the paragraph, Kagan feints towards McCulloch v. Maryland: "This provision is made in a constitution, intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs." She wrote,

On that score, the Constitution left much to the future. And the future did not take long in coming. Almost immediately, presidential electors became trusty transmitters of other people's decisions.

Justice Thomas stated Kagan's same point, with the originalist vernacular.

As the Court recognizes, nothing in the Constitution prevents States from requiring Presidential electors to vote for the candidate chosen by the people. Petitioners ask us to infer a constitutional right to elector independence by interpreting the terms "appoint," "Electors," "vote," and "by Ballot" to align with the Framers' expectations of discretion in elector voting. But the Framers' expectations aid our interpretive inquiry only to the extent that they provide evidence of the original public meaning of the Constitution. They cannot be used to change that meaning. As the Court explains, the plain meaning of the terms relied on by petitioners do not appear to "connote independent choice." Thus, "the original expectation[s]" of the Framers as to elector discretion provide "no reason for holding that the power confided to the States by the Constitution has ceased to exist."

Finally, Justice Kagan's opinion also explored the relationship between original public meaning and what could be called "original practice": Justice Kagan explained:

The Electors stress that since the founding, electors have cast some 180 faithless votes for either President or Vice President. But that is 180 out of over 23,000. And more than a third of the faithless votes come from 1872, when the Democratic Party's nominee (Horace Greeley) died just after Election Day. Putting those aside, faithless votes represent just one-half of one percent of the total. Still, the Electors counter, Congress has counted all those votes. But because faithless votes have never come close to affecting an outcome, only one has ever been challenged. True enough, that one was counted. But the Electors cannot rest a claim of historical tradition on one counted vote in over 200 years. And anyway, the State appointing that elector had no law requiring a pledge or otherwise barring his use of discretion. Congress's deference to a state decision to tolerate a faithless vote is no ground for rejecting a state decision to penalize one.

Not all historical practice should be treated equally. The practice of Congress challenging a faithless elector is worth more than Congress acquiescing to a faithless electoral vote. I stated this point in an article concerning the Foreign Emoluments Clauses litigation: "When considering competing streams of historical practice by the three branches, courts favor purported defiance over voluntary surrender." But a single failed challenge in this case is not enough to override original meaning.

 

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  1. “The Electors shall meet in their respective States, and vote by Ballot for two Persons, ”

    You’re going to have to explain to me, in words of few syllables, how “vote” does not imply “discretion”. This sounds like it could have very nasty implications for voting rights, if this reasoning was taken at all seriously, rather than just being an excuse to decide the case this way.

    1. Well, why does the prime minister give “advice” that the queen has no choice but to accept?

      1. Legally she does have a choice. By convention she doesn’t exercise it.

        1. Right, and legally every black male in the country has the right to tell a police officer to go fuck himself, and with just about as successful results.

          1. I think Brett was seeking some legal analysis rather than practical advice on how to deal with the police.

            On which subject, I would agree it would be unwise for black males to tell police officers to go forth and multiply. White males too, for that matter.

            1. And my point is that the legalities often cannot be separated from the practicalities. I’ve never had a client ask me for legal advice on whether he should give a police officer the bird; if one did, I would feel ethically obligated to discuss both his legal rights and the practical realities.

              The practical realities are that in most states, members of the electoral college (on which I myself served in 2008, by the way, and I voted for Obama) serve the purely ministerial function of making official what the voters did in November. In some states, including mine, electors are given pre-marked ballots. My sole duty was to take the pre-marked ballot which the Secretary of State handed me, and place it in a ballot box, from which it was then removed and counted. It’s little more than a ritual, like the Queen summoning Boris Johnson and inviting him to form a government. On the day that she tries summoning someone other than whomever won the election, we’ll find out the extent to which legalities and practicalities intersect.

              1. Right, I do not advocate that the electors exercise their own discretion. That would be a very bad idea, in as much as they’re not chosen with that end in mind, and nobody expects them to. From a policy standpoint, this was almost the exact outcome you’d want; It falls short only in that for some states it allows the possibility that an elector willing to endure a fine could still cast an effective faithless vote.

                But… I am not at all keen on the idea that our policy preferences should drive our understanding of the Constitution: The flow is supposed to go in the exact opposite direction! From constitutional meaning to policy, not from policy to constitutional meaning. If a constitution doesn’t dictate the range of permissible policy, what’s the point in having one?

                There’s not really any question that the Electors were expected, intended, to exercise discretion. The very fact that they vote carries this meaning!

                What we’re looking at here is outcome oriented sophistry. It’s a good meaning they’ve suggested, but the only way for the Constitution to actually end up meaning it is an amendment.

                1. Brett, I think you would have a point if the justices were making stuff up out of whole cloth — inventing, for example, a constitutional requirement that alternating presidents be from different sides of the Mississippi River.

                  But that’s not what happens, at least not most of the time. Most of the time, the text can be read to mean different things, so the question is which way to you want to read it. Today’s decision is one plausible reading of the text. There are others, including yours.

                  1. Reading “vote” as a ministerial act, right in the face of all the evidence that the electors were expected to exercise judgment, IS making stuff out of whole cloth. It’s on a level with reading “yes” and saying it means “no”.

              2. It’s little more than a ritual, like the Queen summoning Boris Johnson and inviting him to form a government. On the day that she tries summoning someone other than whomever won the election, we’ll find out the extent to which legalities and practicalities intersect.

                Yes, but no. SCOTUS is not a lawyer giving legal (and prudential) advice to the litigants. It’s supposed to be deciding the case or controversy on the basis of the law. Not the prudence.

                If Boris won an election – ie his party won a majority of the districts and if he wasn’t already Prime Minister, then 999 times out of 1000 she would follow convention and invite him to be PM. But 1 time in 1000, perhaps, it might emerge on election night, after the votes were cast, that Boris was a Russian spy (an actual one, I mean, with actual evidence.)

                In such a case, the Queen would legally have the right not to summon him, and could carry on with the old Prime Minister, until Parliament actually met after the election – which takes a week or so.

                During that time the Queen would have private taks with other senior members of Boris’s party and try to discover whether they were willing and able to boot Boris out of the leadership, and appoint someone else who (a) could command a majority in the House of Commons and (b) wasn’t a Russian spy. And she would do this if she judged that the public would approve of her action.

                So it is indeed little more than a ritual, but that “little” gives the Queen actual legal power to act in what she considers is a true emergency. Indeed acting outside the convention, in a true emergency, is within the convention. That is precisely why her formal legal pwer to act outside the convention has been retained.

                In other areas, the sovereign’s discretion has been constrained by actual laws, and she has no legal power to flout them. But not in that one.

                1. What does SCOTUS have to do with this conversation? We’re talking about the electoral college. And the analogy isn’t to advice but rather to substance free ritual.

                  You’ve described an emergency situation and in an emergency the rules tend to go by the by. Yes the queen does have reserve powers. There are circumstances under which I can shoot someone too but that’s not typical. I suppose if the vice president elect shoots the president elect between the November election and the third Monday in December we might find the electoral college actually picking a president.

                  But most of the time the electoral college, like the queen, is a figurehead. You don’t make rules based on outlying and exigencies.

                  1. Well it was you who brought the Queen and her reserve powers into the conversation.

                    And it seems you still haven’t grasped the difference between :

                    (a) actually having legal powers which you don’t, by convention, exercise almost all the time, and
                    (b) not having such legal powers

                    A court is not supposed to be in the business of advising people whether it would be prudent to exercise their legal powers.

                    in an emergency the rules tend to go by the by

                    No they don’t – as we have seen in this coronavirus thing. All sorts of Governors have claimed emergency powers, and rhe courts have ruled in some cases that they do, and in some cases that they don’t.

                    1. I did not bring the reserve powers into the conversation. I made the totally unremarkable point that almost all of the time the queen is required (yes, required) to follow the advice of her prime minister. You then said “but what about emergency outlying situations, like when it turns out the PM is a Russian spy.” To which I respond: I’m not talking about emergency outlying situations. I’m talking about what happens under normal circumstances.

                      Think of it this way: Suppose I say that it takes five hours to drive from Seattle to Spokane. You then chime in “No, you’re wrong, if the driver is killed in a car accident on the way, he’s not going to make it to Spokane in five hours.” And that’s true; if he’s killed in a car accident (or for that matter gets delayed by a non-fatal accident) he’s not going to complete the trip in five hours. But I was talking about what happens in normal circumstances, not what happens in unusual exigent circumstances. And frankly, you’re smart enough to understand that, so please stop playing stupid.

                    2. And no, it is not a matter of her having legal powers that she does not exercise by convention. She is required to follow the advice of her prime minister (under normal circumstances). If Parliament were to pass a law requiring that the entire royal family, including the queen, were to be beheaded on Tower Green, she would be obligated under the British Constitution to give that law the royal assent. I defy you to find one single expert on British constitutional law who would say differently.

          2. Yeah, my point here is that they’ve adopted a bit of reasoning, (Voting doesn’t mean you have discretion as to who to vote for.) that they’d never apply beyond this context, and which they damned well know was NOT intended.

            Typical case specific reasoning which will never be applied beyond this case, it should NOT be treated seriously as the actual rationale.

    2. Likewise for “elector”, who linguistically (and presumably as a matter of original meaning) has to have something to choose to be an elector.

      1. Right, an “elector” is one who “elects”; “choose (someone) to hold public office or some other position by voting.”

        The very word carries the meaning of one who has a choice!

        1. Nice to see we can at least occasionally agree. I had these faithless elector cases down as “not even close” the other way. I would have given crazy odds that at least Justice Thomas would have upheld the original meaning of the constitution, but even he found a way to weasel out. (Albeit a different way than most of the other Justices.)

          1. This is a case, I think, where the halfhearted originalists on the Court saw a train barreling down the tracks they were standing on, and declined to stand their ground and be run over. This fall would have been a political nightmare if they’d ruled the way originalism dictated, and there wasn’t really time to amend the Constitution before the election.

            Just a particularly egregious case of hard cases making bad law. Not the principled thing to do, but easily understood.

            1. I thought (and think) those worst case scenarios are overdrawn. So far the election doesn’t look anywhere near close enough for faithless electors to matter in this year’s election, unless they become faithless in much larger numbers than in the past as a result of a SCOTUS judgment saying they can.

              1. The problem is, (And this was a problem the litigants were actively trying to create!) that the Supreme court giving Electors explicit license to lawfully be faithless is very different from the previous situation where it was merely a bit ambiguous whether they were bound. It was likely to result in a lot more faithless electors, quite possibly enough to throw the election.

                Once they took the case, there was no way to restore the status quo ante, they had to either resolve it in favor of constrained electors, or invite an electoral train wreck.

                1. I’m not buying it. The presidential campaigns were pretty flexible choosing candidate electors, but not that flexible. By and large these people are reliable Republicans and Democrats.

                  (And if they aren’t, there may well still be time to fix that. And if there isn’t, there is nothing stopping the states from reopening the process for adopting/changing each candidate’s list of would-be electors.)

    3. Kagan’s response:

      But those words [i.e. “vote by ballot”] need not always connote independent choice. Suppose a person always votes in the way his spouse, or pastor, or union tells him to. We might question his judgment, but we would have no problem saying that he “votes” or fills in a “ballot.” In those cases, the choice is in someone else’s hands, but the words still apply because they can signify a mechanical act. Or similarly, suppose in a system allowing proxy voting (a common practice in the founding era), the proxy acts on clear instructions from the principal, with no freedom of choice. Still, we might well say that he cast a “ballot” or “voted,” though the preference registered was not his own. For that matter, some elections give the voter no real choice because there is only one name on a ballot (consider an old Soviet election, or even a down-ballot race in this country). Yet if the person in the voting booth goes through the motions, we consider him to have voted. The point of all these examples is to show that although voting and discretion are usually combined, voting is still voting when discretion departs. Maybe most telling, switch from hypotheticals to the members of the Electoral College. For centuries now, as we’ll later show, almost all have considered themselves bound to vote for their party’s (and the state voters’) preference. See infra, at 13–17. Yet there is no better description for what they do in the Electoral College than “vote” by “ballot.” And all these years later, everyone still calls them “electors”—and not wrongly, because even though they vote without discretion, they do indeed elect a President.

      Seems right to me.

      1. Nonsense. If someone chooses to follow someone else’s preference, advice, etc., they’re still choosing and still voting. If they have no alternative but to follow someone else’s wish, they’re not voting, just filling out a form.

        1. Okay? In this case the electors chose to vote for Colin Powell. I’m undecided about the ultimate result, but I think it’s pretty clear that they voted.

          1. They did. And now the Supreme Court said that that discretion can be taken away from them.

      2. Seems rather disingenuous to me.

        In the obedient wife scenario, she still exercises her choice to obey her husband, pastor, union etc and vote according to their instructions. If she decides she doesn’t want to obey, she has no problem with the law – the law still thinks she has a choice. She may face marital or social consequences from husband or church for her disobedience, but she’s still got a choice. (If for example her husband usurps her chice by purloining her absentee ballot and filling it in himself, the law will not see that as her exercising her vote, it’ll see it as a fraudulent, invalid, vote by the husband.)

        Proxy votes are simply a form of agency – the principal has a choice.

        If there’s only one candidate you still get the choice to vote or not to vote.

        As for commie dictatorship votes – they’re “votes” in the same sense as Democratic in German Democratic Republic.

        Indeed should some State decide, in good Soviet style, that they’re going to allow everyone a vote for the State legislature, but the candidates require nomination by a majority of the current State house, then when Justice Kagan is asked whether the State is going to lose any of its Reps under the 14th and 26th Amendments, for denyng the right to “vote” , it’ll take her about 5 seconds to rule that that kind of “vote” isn’t a vote.

  2. Repeating my comment from the last thread:

    The Federalist Papers were just propaganda for ratification. They are only the writer’s subjective opinion, geared at convincing legislators to ratify, not a subjective analysis.

    Gets to the same place as Kagan and Thomas did here, but more accurately IMHO.

  3. Interesting. My mind naturally turned to Article 1 and what is and is not said about the discretion of Senators and Members of the House of Representatives when voting in their respective Chambers.

    The Senators and Representatives …. shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House, they shall not be questioned in any other place.

    So their States may not arrest them, nor question them (ie call them to account in State court) about their speech and debate in Congress.

    But it doesn’t say anything about fining the bejasus out of them if their votes are not to the liking of whatever laws the State may choose to pass on such matters.

  4. This seems an extraordinarily broad reading of originalism.

    If you think the Founders meant for the Constitution to be a flexible or even living document, you’re an originalist!

    Also, if you take the text as a guide to go by, well, you’re an originalist!

    By that metric, we’ve had an originalist Court since WW-2.

    1. Noted originalist: We current Justices read the Constitution in the only way that we can: as twentieth century Americans. We look to the history of the time of framing and to the intervening history of interpretation. But the ultimate question must be, what do the words of the text mean in our time. For the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs.

    2. I agree, it is. An excessively broad reading of “originalism”, which deprives it of all meaning.

      Originalism is in the process of being killed off now, as an intellectual movement, and it’s murderers are wearing its skin.

      1. “murderers are wearing its skin”

        That is what happens when 15 of the last 19 justices have been GOP appointees but we keep losing. Theories, no matter if intellectually appealing or even correct, need to be discarded when they don’t deliver results.

        The garments of originalism will be worn for a while but it will be increasingly mere decoration.

  5. This decision seems nonsensical to me. In common usage ‘vote’ is understood to include deciding (or having decided) who or what to vote for.

    To the extent I have a right to vote, is that right not violated if a government dictates whom or what I must vote for? I mean, so long as I’m allowed to actually cast my vote, it’s okay if a government tells me I have to vote for Candidate A rather than Candidate B?

    If a state’s laws allow men to vote for whomever they choose, but require women to vote for whomever their husband or father or brother wants them to vote for, has the Nineteenth Amendment been violated? I mean, women wouldn’t have been denied the right to vote, only the right to decide whom to vote for.

    1. It seems possibly to separate the act of voting and the act of choosing who to vote for–in fact, this is quite common in proxy voting scenarios. I certainly wouldn’t be happy if I submitted a proxy card to my broker as to how to vote my shares at a shareholder meeting and they decided to do something else instead because they thought that the act of voting necessarily meant that they got to ignore my instructions as to what to do.

      1. If you give someone your proxy together with binding instructions on how to use it you are voting, they aren’t. (Unless they cast their own ballot at the same time as yours.) If you leave them (some) discretion, it is they who are doing the voting.

        1. That is a nice redefinition of words. What is the activity you think the proxy is engaging in if they have binding instructions? Various corporations laws still seems to think that they are “voting”, and common dictionary definitions of the word “vote” just seem to indicate that doing so indicates the choice, not how it is made (e.g., “a formal indication of a choice between two or more candidates or courses of action, expressed typically through a ballot or a show of hands or by voice”).

          1. The proxy is voting as your agent, exercising your choice.

            When your agent signs – with your authority – a contract to buy some property, you are the contracting party, not him.

            There’s no doubt that a proxy vote is a vote in the ordinary meaning of the word – the only matter of confusion (to some folk, apparently) is whose vote is being cast.

      2. The act of deciding whom or what to vote for and the act of casting the vote can be separated, yes. An entity can, without discretion, cast a vote on behalf of another. But the plain understanding of voting includes the deciding.

        The Framers could have provided that Electors cast the states’ votes, in accordance with the states’ respective choices. But that’s not what they provided. They gave state legislatures discretion in how they picked Electors, then they gave those Electors the vote – i.e., the discretion to decide whom to vote for. Electors weren’t set up as (or at the discretion of state legislatures set up as) vote-carrying messengers. They were set up as Electors.

        1. Yes, this masquerades as an originalist ruling, but it is anything but.

    2. Exactly. It was a political decision grounded in illogic.

      It’s clear faithless electors are allowed. But the court failed its job, as usual.

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