“Selective constitutionalism”


Part of the Constitution, too!

Last week, we launched a campaign to raise the funds we need to bring an Equal Protection challenge to the winner-take-all system for allocating electoral college votes. Tons were really excited about the idea, and many have stepped up to help support it. That reaction was amazingly cool and I’m really grateful for the support. (It’s not too late — you can support us still!)

But there’s a particular kind of resistance that we should call out, and ask it to justify itself — call it, selective constitutionalism.

The most common reaction against our lawsuit says that it’s inconsistent with the purpose of the Framers of our constitution. They were not intending, it is said, to create a popularly elected president. They were intending to give states the power to select electors, who would then select the President. So, the argument goes, it makes no sense to argue that the principle of “one person, one vote” should force the states to allocate their electors in a way that respects equality. That principle, equality, this argument insists, is not part of the framers’ design.

There’s lots to say to resist that argument on its own terms. (Hamilton: it is “desirable that the sense of the people should operate in the choice of the person to whom so important a trust was to be confided.”) But what’s so striking is the view that somehow, “the Constitution” is the Constitution written in 1787. As if the bloodiest war in American history, and the amendments that followed, are somehow not part of the Constitution’s design. But of course, our Constitution is the Constitution of 1787, plus every amendment after — including some of the most important amendments, namely, the Civil War Amendments, which themselves included a powerful principle of equality.

Then, when confronted with this argument, the resistance shifts: there is no “specific intent,” as one commentator on Twitter put it, that the 14th Amendment would be used to police the discretion the states might have to allocate their electors as they deem fit. E.g.,

Put aside the fact that the whole history of the modern 14th Amendment rejects the idea that the equality clause is limited by the “specific intent” of the Framers. The real question for the opponents here is Bush v. Gore (2000): If the application of “one person, one vote” to restrict winner-take-all is invalid because the Framers never intended the clause to be used in that way, was the application of “one person, one vote” to the Florida recount invalid, because of course, the Framers of the 14th Amendment had no intent whatsoever about the Supreme Court supervising the state’s rules for counting or recounting votes?

The point is just this: It’s perfectly respectable to say, Bush was wrong, and our claim is wrong as well. But it is selective to say, Bush was right, but our claim is wrong. And it is to insult the soldiers who fought the most costly war in American history — and the Americans who fought afterwards to make their sacrifice meaningful — to say that somehow, the Constitution is just what people in 1787 thought it was.

Our Constitution — the amended Constitution, as interpreted by the Supreme Court for more than 50 years — embeds a principle of equality at its core. That principle has been repeatedly said to apply to the “presidential selection process.” So applied, we believe it ought to hold that the state system of winner-take-all is inconsistent with equality. That is the essence of our claim. (Described briefly here, and in endless lawyer speak here.)

If you agree, please join us and help spread the word. We need 5 million standing with us to make this claim not just true, but real. The money is important and we need it desperately. But much more important is the minds and voices that support this too. Join that, at least!

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