Chiafalo: Constitutionalizing Historical Gloss in Law & Democratic Politics

31 Pages Posted: 11 Nov 2020

See all articles by Guy-Uriel E. Charles

Guy-Uriel E. Charles

Harvard University - Harvard Law School

Luis E. Fuentes-Rohwer

Indiana University Maurer School of Law

Date Written: August 30, 2020

Abstract

This Essay examines Justice Kagan’s electoral college decision in Chiafalo v. Washington, which uses historical gloss—post Founding historical practices—to give meaning to the Constitution and to do so in a manner that is arguably inconsistent with the text and structure of the Constitution. We argue that Justice Kagan, the democracy Justice, uses historical gloss instrumentally to constitutionalize a particular and modern view of political participation—which is best reflected by American political practices—and to reject an alternative and anachronistic view—which is best reflected by the text and structure of the Constitution. Chiafalo is an attempt to update and modernize our understanding of representation and political participation. We explore some issues that are raised for the historical gloss literature and for the practice of law and democracy when gloss is used in this way to interpret the Constitution.

Keywords: Chiafalo; faithless electors, historical gloss, historical practice, representation, textualism

Suggested Citation

Charles, Guy-Uriel and Fuentes-Rohwer, Luis E., Chiafalo: Constitutionalizing Historical Gloss in Law & Democratic Politics (August 30, 2020). Duke Law School Public Law & Legal Theory Series No. 2020-68, Available at SSRN: https://ssrn.com/abstract=3683252 or http://dx.doi.org/10.2139/ssrn.3683252

Guy-Uriel Charles (Contact Author)

Harvard University - Harvard Law School ( email )

1563 Massachusetts Avenue
Cambridge, MA 02138
United States

Luis E. Fuentes-Rohwer

Indiana University Maurer School of Law ( email )

211 S. Indiana Avenue
Bloomington, IN 47405
United States
812-855-5003 (Phone)
812-855-0555 (Fax)

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