In the aftermath of the American presidential election of 2000, calls to amend the Constitution's electoral scheme were rampant. Attacks on this relic of eighteenth-century elitism, however, faded with remarkable, if predictable, speed. Although the electoral college may sometimes prove an excellent whipping boy, it has remained immune to sustained attack, at least in part because it is today a largely inconsequential institution. 1 Despite its presence formally at the center of the Constitution's electoral scheme and its supposed status as one of our "political safeguards of federalism," 2 the electoral dominance of political parties has meant that the electoral college simply does not have an effect on presidential election strong enough to provoke sustained hostility. And this irrelevance is traceable to an "amendment" to eliminate the electoral college that was, in a sense, ratified as long ago as 1836. There was no formal amendment that year, of course, but I want to suggest that the election of Martin Van Buren in that year constituted a functional, if not formal, amendment to the Constitution and one that goes well beyond even the vitiating of the electoral college. Most of us have not been taught to think of Van Buren's election as especially significant, let alone constitutionally transformative. But Van Buren's success in 1836 reflected a profound and permanent alteration of the American constitutional order, because he was elected not as the

The criminal law maxim "ignorance of the law is no excuse" represents a broad doctrine of strict liability in an area of law that usually insists on a culpable state of mind as a prerequisite for liability. For that reason, many scholars have attacked the harsh mistake-of-law rules as incompatible with basic principles of culpability. Other scholars have come to the defense of the maxim, and courts have adhered to it quite strongly even as the list of exceptions to the maxim has slowly grown. Oddly enough, however, this debate has proceeded without a definition of mistake of law. Distinguishing mistake of law, which generally does not excuse, from mistake of fact, which generally does, has proven difficult for scholars and judges alike, with the result that no serious effort to provide a definition of that distinction has yet been made. This article tries to fill that gap. It first defines the distinction by emphasizing law's status as a special system of linguistic meaning within the larger world of fact. It then uses that definition to argue that some orthodox categories of criminal law, particularly "mistake of noncriminal law" and "unreasonable mistake of fact," are empty concepts that serve only to obfuscate the line between mistake of law and mistake of fact, obscure the conflicts between at least two competing traditions of criminal intent, and thus impede a principled approach to the problem of whether and when ignorance of the law should excuse.

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