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Abstract:
Electoral College reform is beginning to get some attention, with two different emphases: a move to institute a nationwide popular vote without a constitutional amendment, and a move to forbid faithless electoral votes. There is no logical incompatibility between the two, but in political and public policy terms, there are tensions between them. This paper evaluates the relative merits and importance of the two efforts and explores the tensions in simultaneous pursuit of the two.

Abstract:
After setting the originalism "stage" and discussion of some of its tribulations, the article turns to the problem of constitutional silences. These come in many shadings, and the article concentrates on three that illustrate different sorts of problems: 1) the failure of the Guarantee Clause to provide a more precise definition of a "republican form of government"; 2) the deafening silence about any role for political parties in the nation's politics and governance; and 3) the absence of guidance about "discretion" to be exercised by presidential elections, which surfaces these days as the problem of the "faithless elector," one who votes in the electoral college contrary to pre-election commitment. These help illustrate how scant are the resources originalism will often bring to the enterprise of constitutional interpretation. The article is an adaptation of the 2008 Nathaniel L. Nathanson Memorial Lecture at the University of San Diego Law School.

originalism, republican form of government, political parties, presidential electors, faithless electors

Abstract:
The liberal political theory that was used to rationalize the apportionment jurisprudence of the 1960s suggests--with a little republican help from the notion of "virtual representation"--the possibility of extra votes for parents on account of their children. It suggests the notion so clearly that the almost complete absence of the idea from American political discourse is something of a mystery. The mystery is deepened by the fact that apportionment is usually done according to total population. Extra voting power is thus already being cast on account of children, but by the district population as a whole, rather than parents. The extra votes idea has surfaced recently, but barely. This Article explores the implications of its mysterious obscurity.

The Article proposes a conversational theory of American democracy, in which public involvement in democratic conversation is the glue that holds the system together. Competitive elections are an essential stimulus for this conversation. The conversational theory is descriptive rather than normative. This accounts for a good deal of its superior descriptive force when compared with liberal and republican theories, which are normative in inspiration and are then turned to descriptive tasks, often without an appreciation of the shift.

The conversational theory comfortably accommodates the continued obscurity of the extra votes possibilities, as well as many other aspects of American political life that cry out for explanation in liberal (or republican) terms. It explains, for instance, the apparent success of the United States Senate, an institution well-suited to democratic conversation, but quite awkward in liberal terms. The extra votes idea may yet catch on, because American democracy is influenced by normative visions. Whether that happens or not, however, there is much to be learned from the fact that the idea remains largely unattended.

Abstract:
"Taming the Electoral College" is a book to be published by Stanford University Press in the spring of 2006. It explores poorly understood aspects of the electoral college, including two possibilities in particular that pose the most serious danger for American democracy. These are, first, determination of the president by faithless electors who ignore the popular votes in their states and, second, choice of the president in the House of Representatives, which is required if no electoral college majority votes in favor of a single candidate. In any given election neither of these outcomes is likely, but the 2000 election showed that we would do well to take each seriously and act now to prevent them from occurring. Both possibilities could be dealt with through constitutional amendment, but amendment is difficult to achieve, and all the more so for electoral college reform. With this in mind the book offers non-constitutional solutions to the electoral college processes. It also offers a way to work toward popular election of the president without a constitutional amendment. The book provides a short critical history of the electoral college, and deploys political and constitutional theory as aids to understanding.

Abstract:
We should take the possibility of an electoral college tie more seriously than we have. There could easily have been a tie in the 2000 presidential elections. With the country closely divided politically, and campaigning informed by technological advance, the possibility of a tie in the future is real. In the case of an electoral college tie, the choice of the President is relegated to the House of Representatives, where each state has one vote. A majority of states is required, and ties could bedevil that process as well, not only because we have an even number of states, but because many state delegations have an even number of members.

There is a ready remedy. Increasing the size of the House by one would yield an odd number of electors. Faithless electors or third party candidates might still necessitate recourse to the House, but an odd number of electors would be a major advance. An increase in the size of the House might not come easily, and a large increase might be a bad idea. But those risks should be tackled and overcome to avert the possibility of an electoral college tie.

Constitutional Law, Politics, Humanities

Abstract:
American democracy is commonly described as "majoritarian" by a wide range of commentators. This book exposes the impoverishment of the characterization first by developing a "vote-centered" model that likely inspires it and then by discussing the many inadequacies of the vote-centered model.

The book then turns to a much more useful "conversational" framework for understanding American Democracy. The incentive structure produced by a competitive electoral system makes all modern democracies engines for producing conversation about public affairs directed to essentially the entire adult citizenry. And a large number of central features of American democracy act as special spurs to wide-ranging conversational interaction between governmental actors and media of communications, on the one hand, and the citizenry on the other. These American features include a separately elected executive, bicameralism, federalism, localism, single member geographically-defined legislative districts, loose political party discipline, and heightened constitutional protection for speech and press. The book argues that the resultant democratic conversation plays an important role in holding the enterprise of American democracy together and in inducing fidelity on the part of citizens to actions taken in its name.

This conversational account also illuminates facets of American democracy which have heretofore "been blurry, if visible at all." Four perplexing puzzles of American democracy that can be "solved" through this conversational account are given extended treatment in the second half of the book. These puzzles are the lack of concern with the apportionment of the United States Senate; the inattention to the anomalous political treatment of children; the fixation of law professors and others with the "counter-majoritarianism" of judicial review in enforcement of the United States Constitution; and the much discussed "paradox of voting," why it is that so many people vote when their individual votes have almost no chance of changing election outcomes. The book finally treats methodological questions of just what makes theories of complex social phenomena (like American democracy) more and less successful.

Abstract:
In the wake of the 2000 presidential election, there will be debate about whether a nationwide popular vote should be substituted for the electoral college mechanism for choosing the President. That debate may be stifled because of the widespread assumption that constitutional amendment is the only way to
effect this change. But, in fact, a constitutional amendment may not be necessary.

State legislatures have "plenary" power in establishing the manner of appointment of electors. There would seem to be no obstacle to a state legislature's providing beforehand that its electoral college delegation would be that pledged to the winner of the nationwide popular vote. If states with just 270 electoral votes adopted such an approach, the popular vote winner would perforce win the presidency. At the present time, a mere eleven states control 270 electoral votes.

Even fewer might suffice. Adoption by the swing state of Wisconsin with eleven electoral votes, or by Missouri and Minnesota with a total of 21 across the political divide, would tilt the system decidedly toward popular election. Deprived of the ability single mindedly to pursue an electoral college strategy, candidates would be even less likely than they have been historically to secure an electoral college win without winning the popular vote.

The politics are tricky, but if some states took the lead, others might follow and opposition to an amendment might melt away. The article draws on the history of the Seventeenth Amendment to assess the possibilities.

Abstract:
Almost forty years after Alexander Bickel coined the phrase, constitutional scholarship is still in thrall to the notion of a "counter-majoritarian difficutly" that the courts are said to present when they engage in judicial review. At a minimum, the "difficulty" is badly named. The rest of the system is no more to be credited with majoritarian credentials than are the courts. But there is also a nagging problem of what is meant by "difficulty," and in particular whether compensation in the rest of the system can calm whatever difficulty there might be thought to be for judicial review.

The courts' constrained conversationalism is a better candidate as the cause of the sense of difficulty. By focusing their conversational energies on the parties, the courts largely ignore others who are affected by the decisions they make. This is in contrast to legislative and executive officials who, due to the incentives created by a competitive electoral system, reach out conversationally. A conversational perspective can clear up anomalies in the literature that Bickel spawned. Neither the uninterpreted Constitution nor statutory decisions are said to create a "difficulty" but there are conversational explanations for the differences. A conversational perspective can also explain why the robust contemporary practice of dissenting and concurring opinions raises no controversy. And it helps us see that originalism and other proposals for constitutional interpretation are not likely to still the sense of difficulty.

Once judicial review is placed in conversational perspective, it becomes clear that the only relief from the sense of difficulty likely lies in retreat from treatment of the Constitution as law. For the courts' counter-conversationalism is part and parcel of their ordinary way of adjudicating under law. To a certain extent this has already taken place. No doubt in recognition of the important stake that non-parties have in its decisions, for instance, the United States Supreme Court is now much more receptive to amicus submissions than it was traditionally. Further retreat might take a variety of forms, but any wholesale abandonment of treatment of the Constitution as law would be likely to create a sense of difficulty anew.

Abstract:
The article proposes a new model of democracy, in which fidelity to democracy, particularly in the United States, is secured through engagement of the electorate in public conversation about public affairs. The model is descriptive, rather than normative, though limited normative implications are drawn from the analysis, because the central phenomenon described -- electoral engagement and consequent stability of the system -- is usually counted a good thing. The model is contrasted with other models of democracy, especially with the dominant "vote-centered" model, in which outcomes are traceable to equally-weighted voter inputs transmitted through votes in candidate elections. The model is deployed to integrate a wide range of phenomena of American democracy, including bicameralism, geographically defined single member (dual in the case of the Senate) districts, the plurality selection electoral norm, popular satisfaction with the Senate and ambivalence concerning courts, the central role assumed by First Amendment jurisprudence, suspicion of interest group politics, and minority group attitudes toward majority minority districting. The article also identifies and then resolves what should be a puzzle under the vote- centered model, but has seldom been noted -- that parents are not accorded extra votes on account of their children. Implications of the conversational model are explored for term limits, campaign finance reform, legislative districting practices, sizes of legislative bodies, sizes of democracies, and other matters. To a certain extent democracy in the United States is contrasted with versions found in other countries.