“Selective Constitutionalism”
Lawrence Lessig @ Medium Sep 16, 2017
Last week, we launched a campaign to raise the funds we need to bring an Equal Protection challenge to the winner-take-all system for allocating electoral college votes. Tons were really excited about the idea, and many have stepped up to help support it. That reaction was amazingly cool and I’m really grateful for the support. (It’s not too late — you can support us still!)
But there’s a particular kind of resistance that we should call out, and ask it to justify itself — call it, selective constitutionalism.
The most common reaction against our lawsuit says that it’s inconsistent with the purpose of the Framers of our constitution. They were not intending, it is said, to create a popularly elected president. They were intending to give states the power to select electors, who would then select the President. So, the argument goes, it makes no sense to argue that the principle of “one person, one vote” should force the states to allocate their electors in a way that respects equality. That principle, equality, this argument insists, is not part of the framers’ design.
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