RECAP: “The Historian’s Case against the Independent State Legislature Theory,” Colloquium w/ George Mason Historian Rosemarie Zagarri

The U.S. Supreme Court will soon hear Moore v. Harper, a case which will rule on whether the North Carolina Supreme Court was within its constitutional right to overturn the state legislature’s most recent redistricted congressional maps. This much is clear: Per Article I, Section 4 of the U.S. Constitution, state legislatures are empowered to establish the time, manner, and place for holding elections for representatives. What Moore will determine, then—a question to which proponents of the Independent State Legislature Theory (ISLT) would resoundingly respond ‘yes’—is if state legislatures are entitled to wield this power unchecked.

In her September 9 presentation at the Kinder Institute, George Mason University Professor Rosemarie Zagarri turned to the early U.S. to make the historian’s case for why pro-ISLT arguments miss the mark. The idea of legislative independence, Prof. Zagarri showed, most certainly has revolutionary-era roots. By 1774, individual colonies had become so disaffected with the official channels of imperial government that they began convening extralegal assemblies that were authorized entirely by the people to act as sovereign legislatures, with the power to raise taxes and arms, muster troops and supplies, and generally ready the colonies for conflict. This trend would continue after revolution had sprung. Still wary of—and by all means reacting to—the abuses of the crown and its royal governors, framers of the first wave of state constitutions stripped governors of many of their typical powers (e.g., veto, appointment) and transferred them to legislatures that were, in their eyes, the governing bodies most attuned, responsive, and accountable to the needs of the polity.

Two caveats: First, even at their most emboldened, state legislatures at no point had authority to govern alone but were at all times subordinate to the constitutions that constituted them. Additionally, by the 1780s, and as early as 1777, many Americans were having buyers’ remorse over fostering too much democracy, and they responded with innovations that curbed legislative supremacy. Pennsylvania and New York created proto-systems of judicial review. A second wave of state constitutions came soon after the first, some of which were by written by bodies purposefully separate from the legislature, some of which were ratified by the people, and nearly all of which aspired to increase the differentiation between statutory and fundamental law and decrease the power of legislatures in the process (a third wave would make clear beyond the shadow of a doubt that leaders and citizens alike recognized the need for more institutional checks on legislatures).

This “vicious vortex” of legislative supremacy-qua-democratic despotism was likewise felt at the national level, where governing the union under the Articles of Confederation was proving increasingly difficult while state legislatures ran amok. As Prof. Zagarri noted in beginning to circle back to today’s ISLT debates, the need to create a central government that could rein the states in without eliminating their power entirely very much animated the 1787 Constitutional Convention (what led to the Convention, mused John Francis Mercer, was the “corruption and mutability” of the legislatures of the states). Far more important, especially as we evaluate pro-ISLT cases, is the fact that the Constitution addresses this need. You have the Republican Guarantee Clause in Article IV, Section 4, which doesn’t simply safeguard against domestic insurrection but which also promises a republican form of government by guaranteeing to each state its own constitution which the legislature in no way, shape, or form can supersede. You have the aforementioned Time, Manner, Place (TMP) Clause, which grants regulatory power over elections to the state legislatures but also endows Congress with the power to “at any time by Law make or alter such Regulations.” Even if we pretend that this congressional oversight doesn’t exist, ISLT supporters would still face a textualist conundrum of sorts. They defend legislative supremacy over regulating elections on the grounds that the language of the TMP Clause specifically vests this power “in each State by the Legislature thereof.” The problem with this interpretation, however, is that the more you read literature from the founding era, the more you come to find that “state legislature” was deployed repeatedly as a synonym for state governments in their entirety, a fact that would restore to state courts a seat at this particular table. And this is exactly how things played out in the early republic. Legislators forged election laws in accordance with the constitutional protocols in place in each individual state and with the foreknowledge that they would be subject to the oversight of all other branches of state government.

Over time, there have been two instances in which the primacy of state legislatures over election laws was asserted: once during the Civil War and once in the 1870s, and neither of these even remotely approached the level of precedent. Instead, the norm has unfailingly been the one that North Carolina jurists adhered to when weighing in on, and overriding, the legislature’s new map. Why is this even a point of contention, then? The door was cracked to revisit election regulations in Bush v. Gore (2000), and it was in the mad scramble to discredit the results of 2020 that people started charging through it.