Moore v. Harper, an election-law case, has progressives in hysteria. For their part, conservatives should hew to conservative principles.
Moore v. Harper, an election-law case, has progressives in hysteria. For their part, conservatives should hew to conservative principles.
I n August, Judicial Crisis Network president Carrie Campbell Severino authored a piece in National Review debunking the Left’s narrative about the stakes of the pending Supreme Court case Moore v. Harper. The case arose when North Carolina was apportioned an additional congressional district after the 2020 census. Upon obtaining the new seat, the Republican-controlled state legislature there drew a map favorable to the GOP. The map was subsequently challenged in state court and annulled pursuant to the North Carolina constitution’s “free elections” clause. After the legislature produced another map, the state supreme court appointed a special master to draw a new one. The legislators, based on the “independent state legislature theory” (ISL), then petitioned the Supreme Court to review the North Carolina supreme court’s decision.
Severino, a prominent conservative legal activist, was right to expose the progressive drama over the possibility of a favorable decision for Republicans in Moore for what it is: a fear-mongering campaign. Her assertion that “the Left is rallying opposition to the North Carolina challenge in federal court with a campaign of disinformation and hysteria” is spot on. If the petitioners prevail, it won’t be a “five-alarm fire for democracy.” However, her argument that “‘independent state legislature theory’ should more appropriately be called the ‘constitutional elections theory’ falls a bit short.
In an amicus brief submitted to the Court in Moore, constitutional-law scholars Akhil Reed Amar, Vikram David Amar, and Steven Calabresi claim that, according to those espousing ISL, the Constitution empowers each state legislative body “to have its enactments concerning federal-election logistics take full effect notwithstanding anything in the state constitution that creates and bounds the legislature.” Put simply, ISLers believe that because the text of the Constitution says the rules surrounding federal elections “shall be prescribed in each State by the Legislature thereof,” only state legislatures have a say in their orchestration. This hyperliteralist interpretation of our nation’s founding document might satisfy some strict textualists, but it is an affront to originalism.
Originalists are students of history. When interpreting the Constitution, they strive to ascertain how reasonable persons who were alive when the document was ratified would have comprehended the ordinary meaning of its text. This makes ISL’s appeal to originalists like Severino perplexing.
ISL erroneously ascribes to the Constitution the conception of a state legislature as an entity in isolation from other institutions ordained by a state’s constitution. The Framers understood “state legislatures,” as the writers of the brief observe, as “creatures whose very existence and shape derived from state constitutions.” It’s clear that the original public meaning of a “state legislature” at the time of the Constitution’s ratification was something constructed and circumscribed by a state constitution. When the Constitution designates state legislatures as the maestros of federal elections in each state, it is empowering entities intrinsically subordinate to state constitutions.
We know this because in the early days of the republic, six of the seven state constitutions that were ratified or amended limited the independence of state legislatures by regulating how federal elections were conducted. At this time, no state legislature demonstrated its purported independence by disobeying the state constitution, and in New York and Massachusetts, the term “state legislature” was understood to refer to the whole lawmaking system. Just as the Constitution constrains Congress’s powers, state legislatures are bound by their respective state constitution.
Proponents of ISL claim that legislatures should decide how elections are held because they are composed of the people’s representatives. But a state constitution is also a product of popular sovereignty. Indeed, contrary to Jeffersonian postulations of constitutional legitimacy, according to which “every constitution . . . and every law, naturally expires,” requiring force to uphold, nothing is more of an indelible mark of the general will of a polity than its constitution. So why privilege the state legislatures? And more important, why should effectuating the general will be the chief aim of legal conservatives? We believe that in a democracy, judges should say what the law is rather than make laws, but we’re not majoritarians, and we certainly don’t think legislatures are omnipotent. They are constrained by the constitutions that created them, and that ensure that the enumerated rights of the citizens are not infringed upon.
Severino correctly points out that legislatures cannot use ISL as an excuse to refuse to declare the results of a presidential election and instead choose their own slate of electors, as this “would illegally subvert Congress’ determination of election day in November as the time when electors are chosen.” But just because progressives erroneously claim that this is so does not absolve the theory of its other flaws. ISL is constitutional balderdash, and not just because its widespread adoption would spell the end of democracy as practiced in the U.S. It’s a theory disconnected from history. Originalists, as stewards of our constitutional order, should steer clear of it.