Amidst machinations by Democrats to overturn their loss to Donald Trump this past November, a legitimate Constitutional point has been raised… and decided poorly. Many states “bind” the chosen Presidential Electors, in effect treating the Electoral College as just a rubber stamp for the states. This ignores the entire point of electoral colleges and delegated representative bodies.

Certainly, state may require Electors to pledge themselves to a candidate, or punish said Electors for violating that pledge. Indeed, it is recognized that the states have a plenary power over who or how they appoint Electors.

However, Electors are not simply proxies for the state legislatures, or the plurality vote of the people. Electors are Federal officers, as the Electoral College is a creature of the Constitution, and not of the states. As such, while states are given plenary powers over the appointment of Senators, their ascribed powers are limited by the Constitution thereto. As such, the states, having chosen their Electors, have no power over the Electors thereafter.

This is similar to Senators and Representatives, who while chosen by the state via direct election, can not be mandated, recalled, or otherwise required to vote or act under anyone’s direction except the elected officials’ own choice. This was even more directly in parallel with the question of Electors as the Constitution, as originally written, before the 17th Amendment when the state legislatures directly chose Senators—the power of the state legislatures being limited to the selection of the Senators, with not other power over said Senators being ascribed to the states by the Constitution.

The entire point of electoral colleges and other independent plenary bodies was to separate direct power from the states via deliberative intermediary bodies. Rather than the states themselves being in the drivers seat, as opposed to direction of the three main branches of government, the Electoral College, similar to Article V conventions, were intended to insulate important Constitutional functions from both the states and the regular Federal government. It is this independence in being and freedom in action that is critical.

Similarly, a convention called by Congress for proposing Amendments to the Constitution is a creature of the Constitution, and not of the states. As such, the ascribed power of the states in this regard is limited to initiating the process, and ratifying the results. The power to propose is reserved to the Congress and to the Convention. “Propose” does not mean two different things in the same sentence. The states are not given the power to propose, but only the right to petition Congress to call a Convention that would propose amendment.

For this to be otherwise, “petition for a convention” would mean “proposing an amendment,” but “proposing an amendment” doesn’t mean “proposing an amendment”.

Also, the convention is not a creation of the states, but of the Constitution. “Conventions of States” had restrictions by the states because they were not creatures of the Constitution. Many examples of “conventions of the states” occurring after the ratification of the Constitution exist; none of these “conventions of the states” were Article V conventions.

Who proposes?

“Congress… shall propose”

“a convention for proposing”

Who proposes? Congress or the convention.

What does the state do?

“application of the legislatures of two thirds of the several states” to petition Congress to call for a convention.

“ratified by the legislatures of three fourths of the several states”

What does the state do? They petition congress to call a convention and they ratify proposed amendment.

In both cases of the Electoral College and an Article V convention, as well as formerly the Senate, were designed so that the states would be a check on the Federal government, and that the states would have a roll. However, the Constitution, by creating the Electoral College and Article V conventions as separate and discrete bodies also serve as checks on the states. Indeed, the creation of the Article V convention option was made in explicit preference to, and replacement of, the states directly forcing Congress to propose Amendments desired directly by the states.

Elected officials, in any capacity, are not rubber stamps for either some Volonté Générale or by other elected, or appointed, representatives. We do not elect people to be rubber stamps, but to be stewards of our Republic. We elect people as representatives to act on our behalf, and we choose (or at least ought to choose) representatives who will exercise their own judgment and conscience in their duties as a steward and trustee of this our Republic. That, in fact, is the entire point of a representative republic!

Edmund Burke stated this eloquently in his speech to the electors of Bristol:

“I am sorry I cannot conclude without saying a word on a topic touched upon by my worthy colleague. I wish that topic had been passed by at a time when I have so little leisure to discuss it. But since he has thought proper to throw it out, I owe you a clear explanation of my poor sentiments on that subject. “He tells you that ‘the topic of instructions has occasioned much altercation and uneasiness in this city;’ and he expresses himself (if I understand him rightly) in favour of the coercive authority of such instructions. “Certainly, gentlemen, it ought to be the happiness and glory of a representative to live in the strictest union, the closest correspondence, and the most unreserved communication with his constituents. Their wishes ought to have great weight with him; their opinion, high respect; their business, unremitted attention. It is his duty to sacrifice his repose, his pleasures, his satisfactions, to theirs; and above all, ever, and in all cases, to prefer their interest to his own. But his unbiassed opinion, his mature judgment, his enlightened conscience, he ought not to sacrifice to you, to any man, or to any set of men living. These he does not derive from your pleasure; no, nor from the law and the constitution. They are a trust from Providence, for the abuse of which he is deeply answerable. Your representative owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion. “My worthy colleague says, his will ought to be subservient to yours. If that be all, the thing is innocent. If government were a matter of will upon any side, yours, without question, ought to be superior. But government and legislation are matters of reason and judgment, and not of inclination; and what sort of reason is that, in which the determination precedes the discussion; in which one set of men deliberate, and another decide; and where those who form the conclusion are perhaps three hundred miles distant from those who hear the arguments? “To deliver an opinion, is the right of all men; that of constituents is a weighty and respectable opinion, which a representative ought always to rejoice to hear; and which he ought always most seriously to consider. But authoritative instructions; mandates issued, which the member is bound blindly and implicitly to obey, to vote, and to argue for, though contrary to the clearest conviction of his judgment and conscience,–these are things utterly unknown to the laws of this land, and which arise from a fundamental mistake of the whole order and tenor of our constitution. “Parliament is not a congress of ambassadors from different and hostile interests; which interests each must maintain, as an agent and advocate, against other agents and advocates; but parliament is a deliberative assembly of one nation, with one interest, that of the whole; where, not local purposes, not local prejudices, ought to guide, but the general good, resulting from the general reason of the whole. You choose a member indeed; but when you have chosen him, he is not member of Bristol, but he is a member of parliament. If the local constituent should have an interest, or should form an hasty opinion, evidently opposite to the real good of the rest of the community, the member for that place ought to be as far, as any other, from any endeavour to give it effect. I beg pardon for saying so much on this subject. I have been unwillingly drawn into it; but I shall ever use a respectful frankness of communication with you. Your faithful friend, your devoted servant, I shall be to the end of my life: a flatterer you do not wish for.”



Tweet