On Wednesday, May 19, the Vail Symposium kicked off the Summer 2021 Season with hosted a program on current issues in constitutional interpretation with scholars ostensibly from different points on the ideological spectrum–conservative Keith Whittington of Princeton University and liberal Stephan Vladeck of the University of Texas. Moderating the program was attorney and impressive legal scholar as well, Rohn Robbins.
- Robbins’ first question for the speakers involved the Electoral College–the basis for it, its powers, relevance, and possibility of appeal. Whittington acknowledged that it does not work as the founders intended. According to him, the founders were trying to mirror the representation found in Congress. They also expected electors to exercise discretion, whereas today they are essentially a pass-through.
- Vladeck pointed out that we are stuck with the Electoral College. As he said, it is hard enough to amend the Constitution, let alone repeal a mechanism that would dilute the power of the smaller states. It has evolved in ways that were not expected, which means that it can be amended. One consideration is that it is influenced by the size of the House of Representatives, which has not changed since 1911, despite a tremendous increase in the U.S. population.
- When asked about the separation of powers, Whittington pointed out that the Constitution is far more explicit with respect to Congress than either the Executive or Judicial branches. He suggested that presidential power has grown so dramatically in recent decades because of the rise in the importance of foreign policy.
- Vladeck invoked the Federalist Papers (#47) to suggest that the design of the Constitution was not only about the branches checking each other, but also asserting themselves against the other. Most recently, it has been the Executive Branch that has pushed the envelope resulting in increased power to the president. The problem according to Vladeck, is that Congress is not standing up to the president when she/he is from the same party.
- Robbins pointed out that nowhere in Article 2 does it mention executive orders. Both scholars were relatively unconcerned about the use of executive orders. Whittington said they were a means of exercising executive powers to advise agencies within the Executive Branch; essentially a tool to control the bureaucracy.
- Vladeck mocked the idea that “whoever issues the most is the worst president.” However, he acknowledged that the use of executive orders when policies or bills are not enacted by Congress is controversial. Furthermore, the Supreme Court has made it increasingly difficult to sue the Executive Branch.
- When Robbins raised the debate swirling around the 2nd Amendment, Whittington pointed out that for much of U.S. history, gun ownership was seen as a “collective right” shared by society for the purpose of fielding a militia. More recently, it is interpreted as an “individual right” for self-defense. Vladeck says that the best evidence of private self-defense comes from the Civil War.
- Responding to a question on “originalism,” Vladeck said that no serious constitutional scholar would argue that originalism was irrelevant, but that it is but one way to interpret the Constitution.
- Robbins’ last question involved free speech. Whittington pointed out the social media companies, like private colleges where he works, can adopt more restrictive rules in their environment around what they think is in their interest as a business.
- The final discussion swirled around the 14th Amendment, which Vladeck said was the most important element in the Constitution, is under interpreted, and does less than the drafters intended.
