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Originalism, Constitutional Construction, and the Problem of Faithless Electors

34 Pages Posted: 6 Mar 2017  

Keith E. Whittington

Princeton University - Department of Political Science

Date Written: March 4, 2017

Abstract

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.

Keywords: Electoral College, Faithless Electors, Originalism, Constitutional Construction, Constitutional History

Suggested Citation

Whittington, Keith E., Originalism, Constitutional Construction, and the Problem of Faithless Electors (March 4, 2017). Arizona Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2927464

Keith E. Whittington (Contact Author)

Princeton University - Department of Political Science ( email )

Corwin Hall
Princeton, NJ 08544-1012
United States
609-258-3453 (Phone)
609-258-1110 (Fax)

HOME PAGE: http://www.princeton.edu/~kewhitt/

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