The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
From Prof. Michael McConnell (Stanford) on the Congress and Presidential Election
Prof. McConnell noted this, and I'm delighted to be able to pass it along:
In the course of researching an unrelated matter, I stumbled on this speech by Charles Pinckney—a prominent delegate to the Constitutional Convention, from South Carolina. The speech was delivered in 1800 in Pinckney's capacity as United State Senator. It shows remarkable prescience, seeming to anticipate the arguments made by John Eastman and others that Vice President Pence and the Congress should refuse to recognize (or at least delay recognition of) the electoral college votes from states where Trump forces claimed the official election results were based on fraud. I have bolded the most striking parts of Pinckney's speech:
Knowing that it was the intention of the Constitution to make the President completely independent of the Federal Legislature, I well remember it was the object, as it is at present not only the spirit but the letter of that instrument, to give to Congress no interference in, or control over the election of a President. It is made their duty to count over the votes in a convention of both Houses, and for the President of the Senate to declare who has the majority of the votes of the Electors so transmitted. It never was intended, nor could it have been safe, in the Constitution, to have given to Congress thus assembled in convention, the right to object to any vote, or even to question whether they were constitutionally or properly given.
This right of determining on the manner in which the Electors shall vote; the inquiry into the qualifications, and the guards necessary to prevent disqualified or improper men voting, and to insure the votes being legally given, rests and is exclusively vested in the State Legislatures. If it is necessary to have guards against improper elections of Electors, and to institute tribunals to inquire into their qualifications, with the State Legislatures, and with them alone, rests the power to institute them, and they must exercise it.
To give to Congress, even when assembled in convention, a right to reject or admit the votes of States, would have been so gross and dangerous an absurdity, as the framers of the Constitution never could have been guilty of. How could they expect, that in deciding on the election of a President, particularly where such election was strongly contested, that party spirit would not prevail, and govern every decision? Did they not know how easy it was to raise objections against the votes of particular elections, and that in determining upon these, it was more than probable, the members would recollect their sides, their favorite candidate, and sometimes their own interests? Or must they not have supposed, that, in putting the ultimate and final decision of the Electors in Congress, who were to decide irrevocably and without appeal, they would render the President their creature, and prevent his assuming and exercising that independence in the performance of his duties upon which the safety and honor of the Government must forever rest?
Annals of Congress, Sixth Congress, at 130, and reprinted in III Farrand, App. A., CCLXXXVIII (March 28, 1800) (paragraphing altered).
