Revisiting the Electors Clause: On the Original Right of the People to Choose Presidential Electors

Abstract

This paper is a full report of the author's recent research into the meaning of the Electors Clause. It supports the thesis that the "plenary power" dictum of McPherson v. Blacker is based on a fundamental misreading of history. (Part I.D is a full treatment of ratification, which is summarized in a companion article that is forthcoming in Denver Law Review, SSRN # 5180256. The Appendices are new.) This paper takes an in-depth look at the following topics: (i) the constitutional text and structure, (ii) ratification, (iii) the state elections of 1800 in Virginia and New York, (iv) Rufus King's advocacy in the Senate (1816-1824), and (v) the state elections in New York in 1823-24 (including Rufus King's role in those elections). The paper adds to the already substantial evidence that the historical review that underlies McPherson's "plenary power" dictum is unmoored from the history of the constitutional convention, the ratification, and the nation's most serious and consequential debates about the meaning of the Electors Clause.