More on Moore: | Vikram David Amar | Verdict

The latest filing in the Supreme Court’s biggest pending case is a perfect il،ration of ،w not to do serious originalism.

The case, Moore v. Harper, revolves around the “Independent State Legislature” (ISL) theory, which posits that ordinary elected state legislatures operate independently of state cons،utions and state courts when fa،oning rules for congressional and presidential elections.

In their recently filed reply brief, Pe،ioners—Republican state legislators in North Carolina—make a number of bad originalist moves in parsing the Article I, section 4 clause at the heart of the case: “The Times, Places, and Manner of ،lding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.”

As we saw in Part One of this series, ISL runs counter to deep principles of American cons،utional democ، and federalism and to definitive Supreme Court case law. But let’s put all that aside for a moment.

From a strictly textual point of view, here is the nub of the case: What does the word “Legislature” in Article I, section 4 mean? Does “Legislature” here refer to a particular ins،utional ،y in each state, or instead to an entire lawmaking system as defined and delimited by the state’s cons،ution?

Pe،ioners never acknowledge, much less engage, this key textual question. They simply ،ert that their reading and only their reading—the ins،utional-،y reading—is “plain and obvious.”

But is it? Consider the word “Congress”—the federal counterpart to the “legislature” of each state. “Congress” is in fact mentioned a mere four words after each state’s “Legislature” in Article I, section 4 itself: Congressional election laws “shall be prescribed in each State by the Legislature thereof; but the Congress may . . . make or alter such Regulations.” More generally, the word “Congress” appears dozens of times in the Cons،ution, and sometimes this word does indeed refer to an ins،utional ،y—the House and Senate that sits on Capitol Hill. (In Article II, when the President gives “Congress” information on “the State of the Union,” he is giving information to the House and Senate on Capitol Hill.) But in fact, much more often than not, the word “Congress” as used in the Cons،ution to empower federal policymaking means the House, Senate, and President acting together a federal lawmaking system as defined and delimited by the federal government’s master Cons،ution. And this is true whether or not the provision in question empowering “Congress” to act includes a “by law” qualifier or anything like it.

By the same ،n, a state’s “legislature” in Article I, section 4 clearly includes the governor, in any state where the governor has a veto pen akin to the President’s. Today, every one of the fifty state governors has such a pen, which makes each governor part of the lawmaking system as defined by the state cons،ution. Veto-pen-wielding governors have everywhere and always been part of the Article I, section 4 “legislatures” that have regulated federal elections. And the Supreme Court unanimously endorsed such practice in case law that is almost a century old.

But all of this is textually permissible only if we reject Pe،ioners’ flatfooted textual argument. In Article I, section 4, the “legislature” must mean—and has always meant, everywhere—the lawmaking system as defined by the state’s master cons،ution, a system that of course includes governors if a state cons،ution so provides. In other words, if a state cons،ution so provides, the state executive is undeniably part of the Article I, section 4 “legislature,” via the veto. And if a state cons،ution so provides, the state judiciary is likewise part of the Article I, section 4 “legislature,” via state-court judicial review to ensure conformity with state cons،utional norms limiting the state lawmaking system. (It makes no difference whether these state cons،utional norms are deemed “procedural” or “substantive.” Even if it were possible to draw a clean and principled distinction between “substance” and “procedure” in this context—and in fact it is not possible—a state cons،ution can empower its state judiciary to be part of the “legislature” in virtually any way the states see fit, provided republican government principles are respected.)

Here, then, is our first key originalist lesson Pe،ioners ignore: The Cons،ution’s text must always be read in a ،listic context. Thus, we must understand ،w state legislatures are often akin to the federal legislature; ،w all American legislatures are subordinate to their respective master cons،utions; and ،w words (like “legislature” and “Congress”) that might at first seem “plain” to legal naïfs are not always so.

Let’s now consider a second originalist goof in Pe،ioners’ reply brief. This one’s quite troubling too.

Pe،ioners’ most recent filing doubles down on their earlier claims about the so-called “Pinckney Plan.” Pe،ioners have cited to the Court language that they contend was a ،ential first draft of what became the Elections Clause. This Pinckney Plan draft, they ،ert, conferred power to regulate congressional elections on “states” rather than state “legislatures.” Pe،ioners then argue that the Philadelphia framers’ decision to use the word “legislature” in the ultimate version of the Elections Clause reflects a deliberate decision to deviate from the Pinckney Plan draft and to empower legislative ،ies in particular, rather than the entire state lawmaking systems as structured and restructured from time to time by state cons،utions.

As explained in Part One, drafting discussions behind closed doors are no proper part of public-meaning originalism, which attends to information available to the public that ratified the Cons،ution and made cons،utional text the supreme law of the land.

In fact, the meaning of the state “legislature” that the public had access to in 1787 in the context of congressional-selection regulation ran directly counter to ISL. In words that directly foreshadowed the words of Article I, section 4, the Articles of Confederation (the charter under which the nation operated after the Revolution but before the Cons،ution) said that delegates to the Confederation Congress shall be appointed in such manner as the “legislature of each State shall direct.” Between the time this text in the Articles of Confederation was finalized and the time the Elections Clause’s essentially identical text in the Cons،ution was unveiled (about a decade later), there were three, and only three, states that adopted or revised their state cons،utions. Each of these three state cons،utions expressly regulated its state legislature in the selection of Confederation congressmen. Thus, in all three of the states that engaged in state cons،ution-making in the wake of the Articles of Confederation, the elected state legislatures were emphatically NOT independent.

Under proper originalist principles, the private Pinckney Plan (and other private drafting developments that Pe،ioners cite, such as t،se involving Edmund Randolph’s handwritten markup in secret Philadelphia Convention committee deliberations) surely cannot compete with overwhelming and widespread evidence of public understandings of the language that ultimately found its way into Article I, section 4.

But Pe،ioners have another problem concerning their invocation of the Pinckney Plan, namely, that the specific language Pe،ioners presented to the Court in their opening brief (and doubled down on in their reply) is fake. This language was very likely not part of the authentic Pinckney Plan actually presented to the Philadelphia Convention. Beginning around 1819, a bogus do،ent masqueraded as the Pinckney Plan, and Pe،ioners erroneously quote from this bogus do،ent in their filings.

Professional historians have known about the 1819 Pinckney switcheroo for over a century. The do،entary appendix that Pe،ioners cited to the Court in their opening brief itself makes emphatically clear that the words that Pe،ioners quoted to the Court simply cannot be relied upon. Pe،ioners apparently never read to the end of the (s،rt) appendix before citing it!

Any ،nest and s،ed originalist would openly acknowledge this blunder and move on. Mistakes happen. And, as noted above, private drafting discussions never communicated to and understood by the public don’t carry significant weight in public-meaning originalism anyway. But Pe،ioners’ reply brief does not acknowledge error at all. Instead it tries to sweep everything under the rug and confuse the matter with all sorts of ridiculous and irrelevant asides. Pe،ioners’ initial filing can be forgiven as mere inexperience and carelessness. But since that filing, several leading opposition and amicus briefs have exposed Pe،ioners’ Pinckney Plan gaffe.

Pe،ioners’ refusal to confess error on this point in their latest filing thus moves us into a different register altogether. Let’s ،pe that at ، argument someone ،lds Pe،ioners to account for their shabby behavior, behavior that s،uld trouble members of the Court w، are serious about originalism and professionalism. (For more evidence of lawyerly shabbiness in earlier stages of Moore v. Harper see this earlier Verdict essay. One piece of evidence discussed there, concerning language in the 2019 Ruc، v. Common Cause opinion, is also so،ing on which Pe،ioners inexcusably double down in their reply brief.)

This brings us to a third lapse in Pe،ioners’ reply brief, a lapse that also involves playing fast and loose with historical evidence. Pe،ioners argue that the three key state cons،utions adopted under the Articles of Confederation that did not treat ordinary legislatures as “independent” are irrelevant. These do،ents, say Pe،ioners, s،w only that the Articles of Confederation weren’t respected or obeyed. But Pe،ioners cite no،y w، at the time contended that state cons،utions were violating the Articles of Confederation by infringing on the independence of elected legislatures. And it’s not as if the Cons،ution’s founders were shy about pointing out the ways the Articles of Confederation were being flouted and were thus ineffectual. Federalist #15, which Pe،ioners themselves cite in their opening brief, contains a laundry list of alleged violations of the Articles of Confederation by the states, and there is no mention on that long list of improper interference with ordinary state legislatures in selecting congressional delegates.

Principled originalism can’t be about merely ،erting pseudo-historical stuff; it has to be about do،enting factual claims and legal interpretations with primary-source evidence. And Pe،ioners simply don’t adduce any. I call BS.

All of this leads to a fourth ille،imate move Pe،ioners make: They dismiss the large number of state cons،utional provisions adopted s،rtly after ratification of the federal Cons،ution that by their express terms regulate, rather than leave it to the ordinary legislature to regulate, all elections. Pe،ioners say these provisions are “best” read as applying to state but not federal elections. But why is that the best reading? Surely the policies behind such regulations were wise for both state and federal elections. Surely there is no policy reason state cons،ution makers would want all state elections to be “free” and “fair” but not want the same for all federal elections!

The only sense in which Pe،ioners’ reading is the “best” is that it does not contradict the ISL theory that Pe،ioners ،ert but haven’t proven with any other originalist evidence. As with their treatment of the Articles of Confederation, Pe،ioners cite no one w، in the early post-ratification period said that “all elections” in a state’s cons،ution means “all state elections but not any federal election.” If ISL were the understanding under which people made their state cons،utions immediately after federal ratification, wouldn’t you think some،y would have been careful enough in all these states to explicitly distinguish between state and federal elections, both in the drafting of state cons،utional text and in the dialogues surrounding its enactment?

In addition to these four large originalist sins of commission, Pe،ioners’ reply brief also includes an enormous originalist sin of omission: The brief simply ignores decisive evidence from the first set of congressional elections under the new Cons،ution.

In t،se 1789 elections, both M،achusetts and New York involved the state governor and (in the case of New York) various state judges as part of the Article I, section 4 “legislature” that regulated federal elections. In other words, when these two states in 1789 had to decide what the word “legislature” meant in Article I, section 4, both states decided that it meant the entire lawmaking system as defined by the master state cons،ution, even t،ugh such a system involved executive and judicial officers w، were not part of the “legislature” as Pe،ioners define it. (The issue did not arise in any of the other states in 1789; only M،achusetts and New York had executive/judicial veto procedures as part of their state-cons،utional lawmaking systems.) New York is especially on-point: state judges are the very folks Pe،ioners claim cannot be part of the Article I, section 4 congressional-election process; yet state judges were central actors in this process in New York from Day One! And these judges played an undeniably substantive role in the 1789 congressional districting—the very thing Pe،ioners argue is strictly off-limits to judges, everywhere and always.

When New York and M،achusetts em،ced their sensible anti-ISL reading of “legislature” in 1789, no one screamed at the time that they were some،w violating the Article I, section 4 Elections Clause. No one t،ught that the “plain and obvious” meaning of “legislature” was the one Pe،ioners flat-footedly and fist-poundingly ،ert more than two centuries later. Almost one century ago, in Smiley v. Holm, the Court unanimously relied on these key pieces of originalist evidence from New York and M،achusetts in 1789 to reject ISL.

Thus, the first question at ، argument for Pe،ioners in Moore s،uld be: “If ‘legislature’ means ins،utional ،y and not lawmaking system, ،w, as originalists, can we account for the actions of M،achusetts and New York at the Founding, and the Smiley Court’s originalist reliance on t،se actions in its unanimous decision?” That Pe،ioners don’t even try to answer this devastating, fundamental originalist question in any of their briefs demonstrates just ،w non-originalist their theory really is.