should US House members pledge themselves to vote for popular
RJLipkin at aol.com
RJLipkin at aol.com
Thu Oct 28 02:11:30 PDT 2004
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.
Robert Justin Lipkin
Professor of Law
Widener University School of Law
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