The Electoral College and Federalism

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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9 Responses

  1. mls says:

    What about the authority of state legislatures to initiate constitutional amendment under Article V?

  2. Brett Bellmore says:

    Some “constitutional developments” are amendments, and some are just governments deciding that they don’t feel like obeying parts of a constitution anymore. Most of the ones which have eroded state power are of the latter sort, I think.

    I think mls is right; The power to amend the Constitution without any federal veto is a very real one, though it has yet to be used. The question is whether, should the states attempt finally to resort to it, will the federal government permit it? Or make a final break with the federalist nature of our government?

  3. Shag from Brookline says:


    “I think mls is right; The power to amend the Constitution without any federal veto is a very real one, though it has yet to be used.”

    ignores the long road from initiating by a state(s) to actually amending the Constitution considering difficulties with the federal means for initiating an amendment.

  4. Brett Bellmore says:

    Shag, could you re-write that so I can parse it? I gather you think I’m ignoring something, but beyond that it doesn’t really parse.

    My opinion of the matter is that, while the power to call a convention and amend the Constitution without federal input or veto is, formally, sufficient to assure state supremacy in extremity, in reality it has a couple of points where the federal government can informally exercise a veto by an act of bad faith: For instance, the federal government could simply refuse to admit that the relevant number of states have indeed called for a convention.

    So I suspect that, should we reach the extremity where the states actually opt for a convention, we will find the attempt thwarted, and the last pretense of a genuine federal system in the US will be dead.

  5. Joe says:

    The checks were diminished as federal power grew, but they are still in place. In other nations, the national government often micromanage localities more than the U.S. does, e.g., while we have fifty states, each that regulates things in various ways. Federalism, unlike Franco, is still not dead.

    Brett has a concern that Congress will refuse to accept an amendment brought by the states. Since one never arose, this is something of a thought experiment. I don’t see Congress blocking it though would have to know the details of the amendment. Also, a problem here is that there has to be agreement on the text. Congress saying different states had different text and rejecting it on that grounds is acceptable. I think if the supermajority of states actually agree, there very well is likely to be the pressure for Congress, coming from the same states, to agree.

    But, we will have to wait.

  6. Shag from Brookline says:

    Joe’s ” … if the supermajority of states actually agree, … ” raises the thought experiment of the smallest population of such supermajority that might actually agree. Could that be a minority or less than two-thirds of the US population?

  7. Brett Bellmore says:

    One can trivially run the numbers, and determine that the 2/3rds of the states having the smallest population comprise well under a half the total population of the US. But then you go look at actual ratification votes, such as the (Largely futile) state rejection of the ERA, and you’ll find that the proportion of the states usually reflects well the proportion of the population. So this seems to be mostly a theoretical problem.

  8. Joe says:

    Sex is still not given strict scrutiny like race which is what the ERA would have basically done and to the degree sex is given strong protection under the Equal Protection Clause, it took at least until the 1990s for the USSC to set the protection (still less than) close to race. I don’t know how “largely futile” the lack of ratification was though there a supermajority of states was not enough (35 of 50).