Justice Kagan’s majority opinion in Chiafalo v. Washignton is thoroughly originalist. Indeed, she articulates with clarity the doctrine of original public meaning originalism. And she forcefully rejects the doctrine of original expectations originalism.
In this case, the electors relied on the “expectations” of the Framers, with respect to the Electoral College. Justice Kagan offered some significant evidence from their briefs:
The Electors and their amici object that the Framers using those words expected the Electors’ votes to reflect their own judgments. Hamilton praised the Constitution for entrusting the Presidency to “men most capable of analyzing the qualities” needed for the office, who would make their choices “under circumstances favorable to deliberation.” The Federalist No. 68. So too, John Jay predicted that the Electoral College would “be composed of the most enlightened and respectable citizens,” whose choices would reflect “discretion and discernment.” The Federalist No. 64.
Hamilton and Jay! Pretty authoritative sources. Just last week in Seila Law, the Court grappled with the weight of Hamilton’s position with respect to the removal power. (I think Kagan’s dissent adopted an all-too-common misreading of Federalist No. 77). But here, Hamilton’s expectations about the ideal electors cannot carry the day. Why? Kagan explains that text, not intentions matters:
But even assuming other Framers shared that outlook, it would not be enough. Whether by choice or accident, the Framers did not reduce their thoughts about electors’ discretion to the printed page. All that they put down about the electors was what we have said: that the States would appoint them, and that they would meet and cast ballots to send to the Capitol. Those sparse instructions took no position on how independent from—or how faithful to—party and popular preferences the electors’ votes should be.
The written word on the “printed page,” matters, not the “thoughts” of the Framers. Later in the paragraph, Kagan feints towards McCulloch v. Maryland: “This provision is made in a constitution, intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.” She wrote,
On that score, the Constitution left much to the future. And the future did not take long in coming. Almost immediately, presidential electors became trusty transmitters of other people’s decisions.
Justice Thomas stated Kagan’s same point, with the originalist vernacular.
As the Court recognizes, nothing in the Constitution prevents States from requiring Presidential electors to vote for the candidate chosen by the people. Petitioners ask us to infer a constitutional right to elector independence by interpreting the terms “appoint,” “Electors,” “vote,” and “by Ballot” to align with the Framers’ expectations of discretion in elector voting. But the Framers’ expectations aid our interpretive inquiry only to the extent that they provide evidence of the original public meaning of the Constitution. They cannot be used to change that meaning. As the Court explains, the plain meaning of the terms relied on by petitioners do not appear to “connote independent choice.” Thus, “the original expectation[s]” of the Framers as to elector discretion provide “no reason for holding that the power confided to the States by the Constitution has ceased to exist.”
Finally, Justice Kagan’s opinion also explored the relationship between original public meaning and what could be called “original practice”: Justice Kagan explained:
The Electors stress that since the founding, electors have cast some 180 faithless votes for either President or Vice President. But that is 180 out of over 23,000. And more than a third of the faithless votes come from 1872, when the Democratic Party’s nominee (Horace Greeley) died just after Election Day. Putting those aside, faithless votes represent just one-half of one percent of the total. Still, the Electors counter, Congress has counted all those votes. But because faithless votes have never come close to affecting an outcome, only one has ever been challenged. True enough, that one was counted. But the Electors cannot rest a claim of historical tradition on one counted vote in over 200 years. And anyway, the State appointing that elector had no law requiring a pledge or otherwise barring his use of discretion. Congress’s deference to a state decision to tolerate a faithless vote is no ground for rejecting a state decision to penalize one.
Not all historical practice should be treated equally. The practice of Congress challenging a faithless elector is worth more than Congress acquiescing to a faithless electoral vote. I stated this point in an article concerning the Foreign Emoluments Clauses litigation: “When considering competing streams of historical practice by the three branches, courts favor purported defiance over voluntary surrender.” But a single failed challenge in this case is not enough to override original meaning.