should US House members pledge themselves to vote for popular vote winner?

[RJLipkin at aol.com]

In a message dated 10/27/2004 7:08:49 PM Eastern Standard Time,  
Mark.Scarberry at pepperdine.edu writes:

There is  no reason why the House
members from Montana should defer in their choice  of president to the masses
of voters in large states who may have voted by  large majorities for a
candidate not favored by Montanans--even if, as a  result, that candidate was
the popular vote winner.
        I'm not at all sure what  Mark means by "no reason." Surely, in 
certain plausible senses of "democracy" or  "popular constitutionalism" there is 
reason for Montanans to defer, namely, the  popular vote winner reflects the 
consent of the governed.  Of course, Mark  might means that there is no 
dispositive reason. And this response  presumably would require an examination of 
"democracy," "popular  constitutionalism," "representative democracy," 
"republicanism," "consent of the  governed," and a host of further questions designed to 
ascertain just what sort  of nation (based on the sovereignty of the people) is 
the American nation.   But acknowledging that there is no dispositive reason 
for deference  does not entail that there is no reason at all. And the more we 
insist  that individual states have no reason to defer to the popular vote 
winner, the  less accurately we refer to the United States as a union, which, in 
my  view, must mean that citizens from different states do have reasons, even 
 if not dispositive, to consider the choices of citizens from other  states. 
Given the existence and constitutional significance of the  electoral College 
this might not mean that these citizens have no formal  constitutional 
obligation to consider these choices, but it does seem to suggest  that a minimal 
condition of "union" is precisely that the choices of citizens  from other states 
are always relevant and should be taken seriously and in good  faith, even if 
these choices are not dispositive. 
 
Bobby
 
Robert Justin  Lipkin
Professor of Law
Widener University School of  Law
Delaware
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