These thoughts came up in the context of Reddit neckbeards arguing that the Framers intended Article II to give Electoral College electors absolute discretion in casting votes for POTUS, despite centuries of longstanding practice of electors following their states' popular votes. But I figured I'd have to know the 2 things in the title anyway for ConLaw class.
1. Are Article II's provisions absolute and immune to curtailment by statute? Vesting, Take Care, Commander-in-Chief, etc. It seems contradictory to say that Art. II both gives states' legislatures absolute discretion in choosing how they vote for POTUS while also giving EC electors absolute discretion to disobey their states' commands. This obviously also came up in GWB/Obama era cases like Hamdan, Noel Canning, Zivotofsky, etc.
Are there any cases that actually circumscribe Art. II powers the same way cases like Lopez limited Congress's Art.I powers?
2. Does longstanding historical practice supersede the Framers' intent? The faithless elector "movement" cites to the Federalist papers as if that were the end of the matter. It's pretty clear that original intent is just one technique/element of Constitutional interpretation. I know Noel Canning was one case that used longstanding historical practice to decide an issue where the Constitution's text and the Framers were ambiguous/silent. Is this just another instance of the tension between original intent & contemporary society (evolving standards of decency, the purpose of the Equal Protection Clause, etc.).
ConLaw: 1) Is Article II absolute? 2) Does longstanding historical practice supersede "the Framers"? Forum
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ConLaw: 1) Is Article II absolute? 2) Does longstanding historical practice supersede "the Framers"?
Post by Glitter293 » Wed Nov 23, 2016 2:24 pm
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