[EL] National Popular Vote Passes Crucial Milestone

[Joey Fishkin]

Fascinating discussion.

One question raised earlier was: Would the NPV proposal alter a "structural"
feature of our constitutional order?

Formally no.  Functionally yes.  (That's why some of the answers above were
talking past one another a bit.)  The functional perspective seems to me the
more useful one: Yes, NPV would alter a structural feature of our current
democratic order.  But if we are going with function and substance as
opposed to form, then we must also acknowledge that the Electoral College is
a feature of our system that has already changed repeatedly throughout our
history, without Article V Amendments -- beginning, obviously, with the
electoral college becoming a group of pledged delegates rather than a
deliberative body.  To defend the electoral college as it exists today is to
defend a durable, but non-textual, non-Article-V feature of our present
democratic structure.  That's perfectly legitimate; some of the most
important features of our democratic structure, including political parties,
have no textual basis.  We have a constitutional order that consists of more
layers than just the written constitution; some key elements, such as
political parties and the current workings of the electoral college, come
from some of those other layers.  I think it's worth being clear that that's
what we're debating whether to change.


Joey

Joseph Fishkin
Assistant Professor
University of Texas School of Law
727 E. Dean Keeton St., Austin, TX 78705
jfishkin at law.utexas.edu
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