Monday’s decision in Chiafalo v. Washington (the “faithless electors” case) was a relatively short, crisp, kind-of textualist/originalist opinion by Justice Kagan (for seven Justices, with Thomas, joined in part by Gorsuch, concurring separately).  John McGinnis had earlier feared a potential setback for originalism in this case if the Justices were swayed more by current policy intuitions than by attention to text and original meaning.  But, whatever they may have actually been swayed by, the opinion itself keeps policy to a minimum.

And, as Josh Blackman points out at Volokh Conspiracy, Justice Kagan has a nice two paragraphs about the difference between what the framers wrote and what they may have expected or hoped for:

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.

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.

Agreed (methodologically).  But I’m not so sure on the substance.  Justice Kagan’s opinion depends largely on her conclusions that the states’ power to “appoint, in such Manner as the Legislature thereof may direct, a number of Electors” conveys power to control the electors’ votes (through fines or removal and replacement of electors violating instructions). True, she goes on to examine subsequent practice, with citations to the Noel Canning case — but unlike Noel Canning, she uses the subsequent history to confirm, rather than depart from, the original meaning of the text.  (Thus Noel Canning dissenters Roberts and Alito join the majority here with no contradiction).  So the opinion really rests on the text.

And I am not so sure on the text.  Specifically, my problem is that the Constitution gives the states the power to appoint Senators (prior to the Seventeenth Amendment) in similar words: “The Senate of the United States shall consist of two Senators from each State, chosen by the Legislature thereof, for six years…”  But no one (so far as I know) thought states could control their Senators’ votes once chosen.  Why are Senators different from electors?

I suppose one could say that because Senators are specifically given a six-year term, states can’t remove them.  But electors are also given a term, at least implicitly, lasting through the casting of the votes.  And even if states can’t remove Senators because of the six-year term, why couldn’t a state require its Senators to vote in a certain way, and fine them if they did not?

My answer is that the power to “chose” Senators doesn’t include the power to direct how they vote (same with a President appointing Supreme Court Justices).  But by the same reasoning, the power to direct the manner in which an elector is appointed would not include the power to direct how the elector votes.  Perhaps the majority has an explanation for why the two are different, but I did not see it.

Justice Thomas doesn’t do much better in concurrence.  He says that the power to direct the “manner” of appointment of electors does not say anything about the power to direct the electors’ vote.  I agree. But then he says that, because nothing in the Constitution says the states can’t direct the electors, that power is reserved to the states under the structure of delegated powers and the Tenth Amendment.  There’s something to be said for that view.  But — it too runs up against the problem of the Senators.  Nothing in the original Constitution said states couldn’t direct Senators how to vote.  In fact, even after the Seventeenth Amendment it is still true that nothing in the Constitution says states can’t direct Senators how to vote.

Of course, maybe under the original Constitution states could direct Senators how to vote (though I think that would have been quite a surprise to the founding generation).  And again, maybe Senators are different from electors.  But I’m not sure how.

Nonetheless, the opinions are basically textualist/originalist, even if I have some doubts about the reasoning. And it’s admittedly a difficult case.  So that should count as a win.

NOTEThis post was originally published at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.

Michael D. Ramsey
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