Whittington on Faithless Electors

Keith E. Whittington, Princeton University, has posted Originalism, Constitutional Construction, and the Problem of Faithless Electors, which is forthcoming in the Arizona Law Review:

In the wake of the 2016 presidential election, opponents of President-elect Donald Trump launched an unprecedented lobbying effort to encourage the presidential electors to vote for an alternative candidate. These efforts were bolstered in part with arguments based on the original meaning and purpose of the Electoral College.

In this Article, I argue that these historical arguments are flawed as an understanding of the meaning and purpose of the presidential selection system embedded in the U.S. Constitution. Electors were not established to exercise a veto on the popular choice for president, but rather were expected to exercise discretion only in a context in which the people were unable to decide who should be president.

In addition to its practical import, the “faithless electors” example shows the theoretical value of the conceptual distinction between constitutional interpretation and constitutional construction. An appreciation of how the office of presidential elector has been constructed over time exposes how radical of a departure the lobbying effort was from American constitutional traditions and democratic commitments and illustrates a better approach to thinking about how a fixed constitutional text should be joined with a living constitutional practice.