New scholarship

[JURIST] Monday on SSRN:

Law, Rules and Presidential Selection [abstract]
by Samuel Issacharoff [faculty profile] of Columbia Law School [official website]
From the Abstract: "Robert Dahl, in 'How Democratic is the American Constitution?' criticizes the institution of the Electoral College as 'morally, politically, and constitutionally wrong.' This Article addresses the third of those claims. Dahl's critique, like many directed against the Electoral College, presumes a constitutional commitment to majoritarianism. This Article examines the rather commonplace departures from strict majoritarian rule in the Constitution, and concludes that the distortions from majoritarian preferences created by the Electoral College are actually much smaller in scope than those created by the U.S. Senate, the Article V amendment process and, to some extent, the House of Representatives. Moreover, subsequent constitutional developments - namely the 'Reapportionment Revolution' of Baker v. Carr and later cases - have not enshrined a constitutional principle of simple majoritarianism that might undermine the constitutional foundation of the Electoral College."



 

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