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tv   Review of Supreme Court Oral Argument in Cases Concerning States Popular...  CSPAN  May 13, 2020 10:19pm-11:24pm EDT

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failed to offer any viable theory on how to address the spectacle of a bribe electric and electrical events or one who have perpetrated the bait and switch on the people of the state. colorado's, pledge requirement addresses all such terms. after over two or three years of constitutional, my friends on the inside were talked out our nations state senator model of electoral accountability in favor of a treacherous experiment and weird this court to reject this dangerous time on and avoid a potential constitutional crisis by reversing the tenth circuit judgment. thank you. >> thank you counsel, the cases submitted pretty. >> a review of this electoral college and the states popular vote. the discussion with legal scholars was organized by the national constitution center. runs one hour.
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welcome to the final installment of the national constitution center can see spent wrap up of the remarkable two weeks that we have just experienced together pretty for the first time in american history, this ring for it has been broadcasting light oral arguments in the national constitutional center in cspan have been here with you to convene the arguments to bring together america's leading ideas on each side and to learn together about the arguments we just heard. we have now developed a ritual together at the beginning of our learning by reciting these and mission of the national constitution better which comes from the u.s. congress and bicentennial of the constitution. some friends, here we gor . percent along with me. the national constitution center is the only institution in america chartered by congress to disseminate information about the u.s. constitution on a nonpartisan basis in order to
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increase awareness and understanding of the constitution among the american people. i have a chills every time a recited and that is just what we have been doing together in the spirit of learning, and thank you for engaging in this experiment with us and i'm so excited now to welcome you to talk about the remarkable arguments about what we heard about whether or not the statebo of washington and colorado can pass laws requiring electors to vote for the presidential candidate though they pledged to elect pretty joining us to discuss this crucially important and deeply interest interesting question are david kopel and paul smith. in support of the presidential electors, his research director of the independentnt institute d associate policy analyst with the cato institute.
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an adjunct professor of constitutional law at denver. as stern. and paul smith filed a brief on behalf of the company legal center in support of the state pretty he is vice president litigation and strategy of the campaign legal center is a distinguished visitor at georgetown university law center rated david and paul, thank you so much for joining us. david we will begin with you because you are representing commissioners we are in the arguments that in the first case the petitioners represented by professor when first. tell us if you will, what provisions of the constitutional text do the electors rely on to support their argument that must have the power under the constitution to exercise independent judgment in state laws permitting them from
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exercising independent judgment violates the constitution. david: think he thinks i say our article two section one point created the original system for how the president would be elected and then the modifications to that in the amendment that was adopted in 18 oh four and then changed voting provisions left move most or all of the relevant provisions from article two injection actually repeated them in similar language in their keywords are electors. because elect or someone as all of the dictionary show, from the time, the law dictionary examine johnson dictionary and everything else. also webster's dictionary of the american english language from 19282 are specifically cited when he defined the word mentor is someone who can't make an election have a choice.
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he actually pointed specifically to the american presidential and use them as an example produce their their keywords are in the dark, boat, and ballot. all of which are the process they go through which does seem to imply discretion and free choice. and just in kayden waited out that you have a soviet style election pretty you go through the boat. but that's not really election. in the strongest words on the other side, as mr. smith's brief pointed out very well or a point that the states do get to appoint the electors in every wide discretion in that. the question the way i would frame it would be with the ward points follow-up all of the other words are on those words like electric, the limits on in some sense on how much control the states have over electors
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after they have been appointed. jeffrey: thank you so much for that. you call your attention to article two. section one and we have the method of choosing electors, each state, shall appoint in such manner as the legislature made a number of electors equals the senators. but no senatorng or rep. or pern holding an office of trust or profit under the united states shall be appointed and elector. in the second part of article two, of section one, says it came up often in the oral arguments, why is it that the framers exempted them from being electors the response was they did not want to be choosing them. paul smith, the text of article rather the trump amendment, was also much quoted in your brief
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argued that the 12th amendment which was passed in the wake of the failed election 1900, and recognize the political party for the first time, she did the understanding of electors has exercising independent judgment and presumed that they would follow their parties call and basically beat faithful representatives of their party pretty tell us about how you think that this is relevant and how you would respond to justice kagan's conclusion that the text is not entirely clear. paul: linking innovation of course would require the electors to have separate votes for president and vice president. and they wouldn't dip in the tide much like the dude in the 18 hundreds. and i think this is not really disputed but the emergence by 18 oh four, a two-party system and the idea that the electors for one party or the other, or two by then, clenched very
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frequently to vote for their party. that was an accepted feature of the system by 18 for rated essays make a point here, and that in passing that amendment, they essentially ratified the meaning of the word of elector that says they can be pledged and bound to support a particular outcome. the outcome of the vote in their state. and that states choosing to doo that are just exercising their power. so they can choose the matter of appointment. and justin's kagan's point, that just makes extent is right. the state's argumentt is to partly based on the absence of language in the constitution. that the electors point, anything about combining the power of the state to that of
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conditions and as i said, this is been since the 1790s. this kind of part of our system. what you end up with here is a linguistic argument. the meaning of the word elect or and the absence of some more compelling suggest that the states are limited in what they can do. jeffrey: many things for all that rated david there was a case that came up often, called brave versus player. 1962 pretty state of alabama could require its electors to become public pledge to support the nominee of the democratic party's. on the grounds of the history was unclear it was not prevented from doing so pretty isn't distancing opinion by justice jackson with several of the justices mentioned and he basically defended the original understanding of the electoral college. he said, ventolin and finkel's
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orchestra can deny the plan originally contemplated. electors were free agent to exercise their independence and nonpartisan judgment. nation's highest office, he said that that has been superseded. they quoted gilbert and sullivan. the listeners know that i am a big gilbert fan. and just as chief justice jackson said, now electors officially became voluntary party, intellectuals whose memory might justly paraphrase to the sapphire, they always voted that the parties call rated and never got to thinking for themselves at all. i love that. my question to you is why is a devotee correct that basically both to historical practice andt supreme court precedents, they seem to give states plenty of
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authority to set the qualification the like. wouldn't the point to the other side. david: they case comes up a lot in oral argument. i agree that that case wasn't characterized mr. smith's brief. that was the case that alabama primary for people on the balance to be running to be the presidential electors at the general election to be on the ballot, and so they wanted to be in the democratic primary ballot to run the race to potentially be an electric pretty the alabama democrat party since do you want to run the democratic primaries coming out of take a pledge to support the nominee of the national democratic party for president. and this guy did not want to. and hede came out just as he sa, when thedi supreme court said n, the democratic party, they want to require repent, that is there
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legitimate choice. and mr. smith's brief, point out accurately the court deciding scholarship, law professor and a great scholar of regionalism in the bomb cases. said the court very carefully did not go over that and say, and therefore you can force electors to vote in a particular way after they've actually been chosen by them. you can certainly take that his implication and tried to run with them with the court very carefully did not go that far in the rate case and some people want to argue that we should take implication of what they were arguing and take it to the next step but the key thing is that the court in ralph did not take it to the next step so it remains an open issue for this current court. see what many thanks for that. they kill mark, was miklawrenceh
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of them have such power on your side of the case. and paul smith on the other side, and just aspire was pressing precisely his point. and he said that it's okay to require pledge of but not to enforce the penalty. are you persuaded by the distinction and why do you believe the text history and tradition on the other direction. david: there is some things that suggest it's okay for the states to be an elector. and some will punch how they will but in advance pretty one state says that they can't do anything about it. they ignore that fact. an appraisal source of strange nest about the system. in the argument of into these questions about what does the
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state's power can anything with the elector after the election day and before the meaning of the electoral college. is there any power during that time. for the state to enforce the pledge or do something else. we have a lot of discussion about what happens that the election takes a bribe. what if the elector says i'm just not going to show up. i rather not test of) it that forces a series of compromises by the professor. at least have some power from the states to after the appointment in the election and before the electoral, to do something which creates a kind of stopping point problem i would say. jeffrey: thanks for that. david, and as justin kagan put it, this is not strictly an argument that the left is making
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about the original understanding of the constitution rated justin kagan said that might be for medication. but after the ratification certainly by the time of the 12th amendment, things switched and we adopted this new understanding so are you hanging your hat, excuse the expression, the justice kevin agape. are you saying that that textual meaning of the word elect very close the power to make sure an independent judgment the canopies constrained or is there rasomething beyond that argument at thehe core of yours. david: certainly we can start with that. in our brief, which is founded on the principle of the declaration of independence. it was surely originalist. there are lots of important issues in this case but we wanted to give the court the most solid and explanation of the original meeting. it's not only the original meeting of the philadelphia convention convention, but the
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debates after but then in the discussion following the ratification but most importantly i think 19 oh four when the 12th amendment was ratified all the discussions pros and cons about changing the system of the presidential election, the electors vote for twoen people, or did they vote n one time or a president and then have a separate balance for vice president. the pro and con discussion of congress,systems in always based on the explicit statements now electors to have the discretion. so of course they were recognized for their party's existence. the point is 19 oh four, those were for or against for new system, all agreed electors did happen would continue to have discussion and they made their arguments for the new system with that in mind.
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jeffrey: thank you for that. paul can you respond to david'sa argument about the original understanding about the 12th amendment and why you believe that the creation of the two-party system in 1900 actually allow the state to constrain or not electors place rated. paul: by the time we got to this issue, they were there and adores and pledges from the royal to the parties and everybody, understood that that's who those people were. so the respondent argument is that the debate, people understood the word elector in different ways. and different understanding back in the ratification stated in the lesson in history, says that conception has been placed ever since pretty 44 states do not an infant electors names on the lollots. because, everybody assumes and
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understands that the electors were merely a placeholder cast a vote in favor of the people they were pledge to support. we don't think of them is exercising expression. and we have not for 200 years suggesting to be o ultimately a lesson in history and that history about plates. one of the things the course of done is to look at how their arrangements have been worked out and hownd that system is ben operated. f the arguments from the states are they arere to be understoodf the powers of the acting pledges. it works much better if we can rkenforce them. and there's a possibility of electors overturning anov electn
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pretty. jeffrey: thank you for that . david, he said that if states are able to do so, they might forbid electors from voting in elector who has not visited the state or released tax returns as new york and new jersey proposed predict their partisan opportunities throughout history, and the history suggest that they electors should be able to exercise discretion. on the other side, just as kavanaugh said we generally got the principle of chaos and if we give electors to some better discretion that they might be lobbied and bribed and we would have referral so tell us more about the horrible's that such this would happen would seem to be a reality in some states whether you believe that it is and why you believe it.
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>> i think both sides did a good job pointing out there separate brain of horrible's pretty. david: and many both of those are potentially true in one of the things the court was addressing a lot in the oral arguments is a definitely the first one, was as the two sides framed it, they really came in with the very absolute position on either side with the electors say what is recorded. and the states got no power at all. and then on the other side of the state coming in and saying, no our powers would point, it is so immensely best that you may have been appointed in november and thenha when you're in say december 9th, actually voting by ballot with the person that you choose for president. the ballots can be stashed awayt and there will be treated as if he somehow resigned your appointments. i call the justices seem to
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think that those went way too far . in one of the questions was can we just focus on the one issue. can a state punish and elector for the choice of the electric mates . in terms of the catastrophe on both sides the potential of, for constitutional guidance is the 20th amendment. and addresses the question what do you do from those from the early 1930s, what happens after the electoral college, and we have the president formally chosen by them. maybe transmitted the results to congress, or the dead. in the 20th amendment provides us a mechanism on how to address special. it is notable with that when 20th amendment was being passed, the never addressed the issue of what happens in between the general election day in november, and when the electoral college meets in december, what
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happens of the president or vice president dies then and the reason is they knew theyth didnt have to because the elect doors would be able to make the choices. they maybe ron devitt say that they made the campaign promise to vote for somebody another dead. and then at their december meetings would address that. jeffrey: could you respond to that point. do you think they can make independent judgments. listen one side of the side of horribles, what cannot states do. when they could independently in violate or discriminate on the basis of race and maybe they could not require the president to turn over tax returns. that would impose an additional qualification on who can be president in violation of a
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qualification term. so unpackk that response. >> the fact that it doesn't address when the elected person dies. don't see how that in any way indicates something lacking power that would if he is still alive how would that affect it. the electoral college. so it seems like what it does is it leaves the states fully in control of what to do in the unusual event with which someonn dies. i don't think the answer to the question of whether the pledges can be made if the if the state chooses to do so, make them enforceable if the person dies. while there might be better answer for that to be addressed missing may be that the vice president can. but in terms of the horribles,
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seems a little bet my feet arguments is looking for a limit on how this is seen this week at the supreme court. i thought the attorneys, did a pretty good job of saying are d some things that we cannot do with reported power like racial discrimination or alter the qualifications of the president. the general, and in practice what it means, as we've all chosen election popular luncheon. to decide who we choose. in the pledge that we have voluntarily taking on that role. so didn't strike me that the frame of horribles is the stateside was a particularly effective of a method of argument from the justices on
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the other hand the justice, and others seem to be quite concerned about the practical consequence of leaving the supreme court itself and wanted to announce that electors are free agents. and the most important response is that youou can have one candidate when the popular vote and the electoral vote by a narrow margin and then two or three elections and the entire outcome of the elector is changed. in the present would be lawfully elected nobody would think he should be. that is a big fear hanging over this case. jeffrey: it certainly was. and he said f to the professor, those who disagree with your arguments, they would lead to chaos is. the situation with popular vote was closed. the rational response of either
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party would be to mobilize the mass political campaign. and there would be a long political campaign with the electors choose a quick possibility, we don't deny the possibility although it may not be a good possibility. ctand there's only one elector n history who doesn't seem to make that situation. david maybe you cania address te justices concern about chaos more directly. one would not that happen pretty.wo david: i think it could. in fact, i think it was attempted in 2016. where there was a big effort to get in electors who are pledge to either troll or clinton to vote for another been denied both of them a majority of the electoral college and something to the house of representatives which under the 12 amendments, if nobody gets majority, the house voted by state than choose
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among the top three. that effort did not succeed pretty it would not have succeeded even if every elector who wanted to switch had not been blocked. in minnesota, there was elector who wanted to switch but that couldn't happen. and honestly, as a production, i think that's exactly why i think the states will most likely when the case. in my view the text in original meaning, including the fourth amendment, is very strongly on the side of amateurs being able to neglect and make decisions. but the practice has and expectations have gone up otherwise. just don't see a majority led by chief justice robert. being able to make that large expenditure of political capital it would take to reggie educate the american people and site
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actually the electoral college is not just a system of points. if you c are electing to choose people who are already electors can make their own discretionary decisions. jeffrey: paul, i would love you to add out striking it is that as he heard the argument, the site was going to lose this argument dide seem there in that regard and many of the other ones that we have been watching over the past weeks. thus also leaves me paul a question that glenn asked mckinney bosc is there an ideological curve. david just suggested that a bipartisan majority on your side. do you agree pretty. paul: think that is a political essence of modern. let methodology could come down to people who really believe in
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rituals. both it creates an argument and those who are more practical. i think that is what the president was trying to appeal to. he didn't seem to be getting too much fractional freedom essay, .unlike david, i find it hard to read that with these arguments, and these questions with two minutes. what it means is that every g justice feels that is a hard question on both sides. and usually, they are not saying anything. at the end of thef day, i kind f agree. it could be overturned by people whose names they never heard of. and campaigning that might go on
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and a very close election. is not certain given the difficulty of figuring out where the justices are. jeffrey: is interesting of the observation of this new format has made a hard rain depart. and traditionally, vance most questions on the side there most skeptical of. as in that way. unlike the supreme court, brett cspan, discussions can be guided by principles and try to persuade our viewers. another one of your arguments, and your side ise the federal functions argument the brief argued that the federal functions, they may not be interfered with by estate.
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and never before has a state to control how a live in elector tries to vote. and has a contrast did with the tenth amendment on the other side of the state than the reserve hours to command the electors. paul: the most foundational part of that is the federally charged bank was operating in the state of maryland they wanted to propose a tax on certain operations of a bank in maryland and the supreme court said no you cannot do that. you cannot interfere with that. so there is a lot of back and forth. he gets quite intricate, the electors performing a federal function or some of the most extreme view on the other side, colorado says oh no, the really minor state officers under the complete control of the state and government.
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in the text, of the constitution seems to go at least in favor of the more federal size and once the states appoint the electors wishing him a very wide discretion to do, the states that have any for the rules as at least according to the text of the constitution. an even if you look at the federal statutes, that have been implemented for the electoral college, from title iii, the electors basically one themselves. they are the ones who are responsible for meeting and for certifying their results. and things were, the secretary of state, under the statute, that only happens to be if the electors for some reason do not send in their results by themselves. and the tenth amendment states the principal at our federal
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government is one of the powers for has in the constitution are those one specifically given it to it. in the other powers are reserved to the stateser as their traditional powers because they do retain a substantial amount of sovereignty. in the argument we made in the briefest that is completely true. but the states never before, was rectified. the state never had any power over presidential electors to begin with. because they did not exist. they were created purely by the u.s. constitution produces states have no reserve or implicit powers over those electors forced to could the tenth amendment of the t source. jeffrey: is a very helpful explanation. very clearly, this is having at the time of ratification, reserving any powers and
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arguments, crafted and to that degree, the power just does not exist. as you said, the argument is in the tenth amendment coverage. david: why would we exercise our rights to vote if we knew that her vote was merely an advisor electors held the real power. wouldn't that, came from several of the justice, without question and to some degree the answer was with the states can reserve the power on their own and claim in advance of the popular vote is merely an advisory. they say they will abide by the results of the popular vote. then the right to vote is recognized in the pray for sanders, and tell us more about that argument. the five and a couple of
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hypothetical questions about whether or not the legislature going toate say were pick the electors in the elections are going to have anything to do with who they are printable wall let them vote and they won't simply indicate to those electors, withdi you are f the people of the state by which the president and theca electors are being told, you can ignore it if you want to. this is a purely advisory vote. in theory that could be possible. the constitutional after all does not say you have to have a presidential election. legislature can decide. jeffrey: what that has to do, is unclear because basically what we have here is a system or states have advance, they have the democratic electors over here in the republican over i here.
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and the people are going to vote. and whichever one carries estate will be the vote electors. adthey will be pledged in advane for a candidate. so obviously, the voting in that context, is meaningful. because the parties pick the people who are likely to win. it still makes about not controlling. in the electors and in their discretion, despite the people, saying that you're in charge right in the electors are civilly going to carry out your wishes. so that is a problem for that of and the problem got into was he had to conceal that they do have powers of the appointments. the power of employment does
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include some power of removal. and once you have reached that line, as he did in the argument several times, is somebody who was convicted of bribery during this time, somebody perjured themselves by swearing in a certain way. what should or once you reach that line, it is hard to do because you be casting in the votes. i think the argument to that extent ended up being in possession of making it more murky. hapecially and maybe even fatal to them. jeffrey: the extent to the discussion of the extent of the removal power. and it was pressing about whether the relationship had to be vertical. in other words, the president can remove the officers that he appoints, the horizontal
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exist.nship could not and cut against the other side. he also mentioned another case. in one case that they relied very m heavily was the other ca. and it got a lot of your time. the one this was in michigan. in the congressional district and gave all of the electoral votes of every district and the court essentially held in the state under power to choose his electors as it pleased. david tells about the significance of this and why you think it cuts your favorite. david: is still in effect today. states if they want to, can divide their electric motors by district. so nebraska and maine, nebraska has three congressional districts. so one to each winter of a
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particular district in two electoral votes to the winners. barack obama got one electoral vote out of nebraska winning the omaha district. that's is so long as far as it goes. along the way, there's some statements about the broadness of the states appointment. i think that is true based on the text of the constitution. the question is that someone do what i think the power to appoint, into the power to control after appointment. some people take the language from other supreme court cases. the justices didn't really seem to go for that. obviously the power to appoint, you can't control the decision. and that legislature or governors, to appoint senators
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which they had prior to the 17th amendment, obviously doesn't include the power to remove and the people on the inside who favor the removal power will say will that's only because there's express limits on removal so for example the senator and six year term and tells you he cannot be removed after being appointed just because you don't like the way he felt today. why say there's that moment in the u.s. constitution for the electoral themselves and that has to limit the elect tour. in the elect tour makes a choice. you cannot punish or remove an elector from making a choice. jeffrey: many thanks for that. paul, there was a series as you said, insightfully, like this case, it was about limits. we talk about the limits that your site confronted about whether or not a state could require a candidate to disclose
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tax returns. in the other side was pressed about are there limits to electors discretion. what chief justice, in the due to flipping a coin. ... ... they don't think the ste
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has any role in supervising and if the state could lose the electoral vote for the outcome is hard to defend. one problem is that it ultimately leads to the congressional level. congress can't appoint somebody else at that stage and made the state can appoint the electors.
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>> both justice ginsburg and justice breyer said what do you make of the fact congress never failed to count the electoral votes not once so it's accepted and then justice breyer said as far as bribery in one case they refused to vote and there is a mechanism to protect against catastrophe and why isn't that enough of a protection? >> it certainly is an important protection and of course losing inre a landslide with president grant for the electoral vote was there a the person still pledged
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to vote for the candidate and i think this relates to the same issue which is appropriate to say you have to vote for somebody that is constitutionally eligible to be president of the united states so you can't vote for this because he isn't alive and he wouldn't be an american citizen. did you vote for anybody that meets the constitutional qualifications which includes being alive and being over 35-years-old and a natural born american citizen the answer is yes and congress has never refused to count the votes for people that are qualified to be president.
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>> which justice would you say was most sympathetic to the other side and why? >> it's a a hard question to answer. there were questions asked by more conservative justices but i don't think i could identify a single one who i would say is in the column of the electors. the format makes it a little harder to read but even those seem quite concerned about the practical consequences and about the discussion being exercised and the problems that could arise. then there were these confessions made that there is a
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role for the state to play for example if they say i'm not going to show up i would rather have no vote. they can see that and i think there's a concession to. if the person is aware they are taking a bribe it came pretty close to conceding that as well. given those concessions and the fact anybody containing thought it was a good idea among the justices don't think ther i dons a view of this. >> i will ask which justice you thought was most sympathetic to the argument and iic would offer justice gorsuch did say if a thousand dollar fine doesn't
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change the way and electorate is voting him a lot about the new law in colorado and washington whereas fn elector is that consistent with the federal electoral count act and constitution? >> in this current format the justices worked hard to pose the most challenging questions of particular interest to them so it's harder to getrd a read in either direction on where they might be leaving on their vote to. but i think is important as there was also discussion about standing and whether the court should decide these cases. i hope they do. i hope that this is not one of the cases where nobody is
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standing where we don't have jurisdiction. this issue should be decided now and not december 2020 or january of 2028 or sometime announces the middle of a contested presidential election where the supreme court decision but decided the outcome win or lose it's important to have clarity in advance. >> your brief for the campaign legal center they think they can disclose a to make sure you get up for the o listener's main arguments and if they begin by saying that it i grants states plenary power to appoint presidential electives which includes the method of appointment and for that reason the court should reaffirm to
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determine its method in which includes any other crucial points that you want to share with the viewers? none of them do apply and it's legitimate they secretly wanted to violate anything for them to mbthen be electors at the same
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time and so one of the things he said is if they are going to really say is true, you need some time of congress to at least impress those kind of things. they wouldn't fully solve the problem because they said the states are powerless and that's going to be a problem but at a minimum we want to have the kinds of safeguards that exist for every other governmental official to decide that they carry out their responsibilities in the interest of the country and not in their personal interest. >> david, would you like to respond to the argument that some kind of safeguards are necessary and then let me praise your independence institute which was a model of the fossil originalist arguments and you
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argue the convention knowing they copied the models which the discussion was protected and share with the viewers any historical details that you found that you think are relevant to the case. >> on the prefix when i was reading to prepare for the program but i said i think i know who's going to win this case and its notable that on some of the strongest point they didn't even really attempt to address them said he suggested if we are going to do this the court should stay the effect of the mandate until after to give the federal government time to set up the kind of anti-bribery law and things like that that would make a lot of sense. one of the things they try to add some people say the whole
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idea having discretion was thought up by alexander hamilton in federalist 68 and that's his little idiosyncratic notion. the idea was proposed in the philadelphia convention by james wilson by probably the greatest player in the country at the time and he and the other delegates look to first call the scottish model where the members from scotland were chosen by commissioners who were locally chosen and then the commissioners on their own discretion had to make their own independent decisions to choose that they would be the best members andbe more close to home thatim similar to how the state senate was at the time of the
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house of representatives was to play by the people and the maryland state senate was through the system of electors which very expressly called for discretion so this wasn't something that just came out of big musicalfrom a these days. it is a much bigger, broader and very widely accepted concept whether you like it or not thann just the idea of alexander hamilton. he was reflecting conventional wisdom is not advancing the theory. >> thank you very much for giving into the juror would founder of pennsylvania. he was maligned in another musical 1776 where he was treated as a character but as you said he was the great genius of the convention who came up with the idea we are sovereign rather than we the people. you did a program at the
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university of pennsylvania who noted olson originally wanted a popular election of the president as a reluctant compromise and certainly would have wanted. wanted. would they stop there and ask do you believe james wilson given his devotion to the popular sovereignty would have wanted to constrain the discretion of electors to deviate from the voice of the people or not? >> it's a little hard to put thoughts in the head of a screamer like that, but the person who believes in popular election and accepted it only as a compromise you would think would want to safeguard the ability of the states when they choose it as their method of to be able to have the results be
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reflected in the votes cast six weeks later otherwise is not only taken away popular sovereignty by having the electoral college but then un cover and disregard. >> thank you very much for that. it's time for closing arguments in this wonderful discussion and we need to give a couple of closing thoughts after that as six simply did it consistently and precisely as you can if you can tell the viewers why you believe your side is correct under the constitution if we will begin with you, david. why do you believe the original constitution as amended by the 12th amendment prohibits states from constraining the power to vote their conscience as they please? >> whether you call it original or whatever, it still has the same words in it and the words
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of the electorateve and vote in the ballot all necessarily imply the ability to make a choice. so it is the constitutional text. recognizing popular understanding is certainly deviated from that so while i think it is unlikely the court would want to spend political capital to be educate the public back to what it really does lycée and was the original public meaning that understood that those ordinary nonspecialized birds that is what the constitution says and what we try to do at the brief is everybody needs a lawyer and we feel in the constitutional case is at least fair that the original public meaning of the words constitution gets defense for what they are.
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>> thank you very much for that, david. and the last word to you, why do you believe that the tech is of the constitution as well as its supreme court precedent and practice do not prohibit states from constraining choice and requiring them to vote for theit candidate? who >> first it is true of some of e framers said they anticipated they would be acting with discretion but they didn't put anything in the constitution that made that explicit and they gave the states a great deal of authority to decide and given that it is pretty natural to assume they would have a reason to make them follow the rules. with that said the other piece
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of it we have now gone two centuries or more with the understanding that they will in fact follow those rules and reflect the vote in their state although they've ever done anything to threaten the outcome ofyt an election. the states are not even telling the voters who they are voting for and given the risks of a catastrophic meltdown if they were to change the outcome i think the better part is for the court to do what david thinks they are going to do which is to say the we are not going to upst after all these years and we're just going to leave it in place. >> thank you very much for the marvelously illuminating and
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educating discussion and you can read their briefs as a part of your final homework for understanding before the opinion comes out and then when it comes down whether it is an june or later i want you to read and reait andread the majority opinf there's a dissent, read the dissent and if there's a concurrence that is a separate opinion that agrees, read that also and make up your own mind about which arguments they find most compelling. you've earned the right to do that because you joined in this great enterprise of constitutional self-education listening closely to the arguments on both sides, recapping them, reading them and then growing in wisdom. i'm so grateful to do for having embarked with us on this great experiment. we t didn't know whether americs would be eager to join us in taking the time to engage. i am blown away by your e-mails
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and questions into the positions with which you are engaging and all of us are watching the court do it work. i have to end by urging you to continue your education. it is important that you continue to grow in wisdom, we stand by ready to help you and we are offerinthey are offeringe classes on the constitution every wednesday, thursday and friday at 1 p.m. which you can tune into. we have our weekly podcast where i convened the experts just like paul and david every week to discuss the issue of the week. we have town hall programs that discuss these questions live, and it's just a cornucopia of opportunities to spread life and faculty. but i do have to end with this plea. you see the majestic building behind me on the fake backdrop. in fact it is closed right now as so many public institutions
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are. we have no admissions revenue for the period of closure and we are waiting for the time we can reopen. we are a private nonprofit. they receive little or no government money and we rely on these from those like you and the mission is urgently important for the nonpartisan constitutional learning so i want you to go to the website and sign up and become a member. you can do it for a dollar which has been amount that they are fined for some state or $5 or of course more if you can. but the crucially important thing is to signal your membership in the community of lifelong learners which really is open to all americans of all backgrounds and perspectives so that we can join together and unite around this human freedom which unites us. let me thank my great
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constitutions and her colleagu colleagues, the great team and thanks to our wonderful friends that c-span and 13 for having engaged with us in the experiment which i said repeatedly throughout the week they said the constitution is an experimenas anexperiment as lifn experiment in this i think is vindicated the founders hope that the american people are able and willing and able to converge around challenging constitutional arguments and debate them setting aside our passion and the reason. thank you very much. it's been an honor to be part of the conversation and i look forward to seeing you at our virtual programs very soon. once again, thank you to paul smith and david. thanks, stay safe and see you
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the senate is back this week to vote on a house bill reauthorizing certain foreign intelligence programs that have expired in march. on the florida senators continue to talk about the virus pandemic as a possibility of passing additional legislation. >> this is made by vicki in rochester new york by american labor, union labor, by the grand and proud and generous company that's been in rochester in the


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