« Frank Buckley on Constitution Day and the September 3 Constitution
Michael Ramsey
| Main | Robert Pushaw: Fortuity and the Article III 'Case'
Michael Ramsey »

09/18/2014

The Original Meaning of "Legislature"
Michael Ramsey

At The Atlantic, Garrett Epps highlights Arizona State Legislature v. Arizona Independent Redistricting Commission, a case on appeal to the Supreme Court scheduled for the Court's upcoming conference.  As he explains:

Here’s another constitutional conundrum: What does “legislature” mean?

The answer could determine an issue at the heart of our current poisonous politics. Can the voters of a state take control of drawing House districts out of the hands of their elected legislators and entrust it to a bipartisan commission? That’s what Arizona voters did in 2010. Now the legislature is demanding to be allowed back in.  

Article 1, section 4, clause 1 of the Constitution says that “The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the Legislature thereof; but the Congress may at any time by law make or alter such regulations ....” No one questions that state governments can draw their own legislative districts. But what does “legislature” mean? Does it mean “the legislative power of a state,” or “the bunch of politicians with bad haircuts who meet at the state capitol every year or so”?

Contrary to Professor Epps and the lower court, I think obviously the latter.

First, in other places where the Constitution uses "Legislature" it pretty clearly means the elected representative of the state, not just the state generically.

Article I, Section 2: "The Electors [for the House of Representatives] in each State shall have the Qualifications requisite for Electors of the most numerous branch of the State Legislature."

Article I, Section 3:  "The Senate of the United States shall be composed of two Senators from each States, chosen by the Legislature thereof ..." and even more conclusively: "if vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof shall make temporary Appointments until the next meeting of the Legislature..."

Article IV, Section 4: "The United States shall ... protect each of [the States] against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence."

Article V: "The Congress ... on the Application of the Legislatures of two thirds of the several states, shall call a Convention for proposing Amendments ... which ... shall be valid ... when ratified by the Legislatures of three fourths of the several States..."

These clauses contemplate specifically the body of elected representatives (which has "Electors", which may be "in recess" and may be "convened").  Further, several of them have routinely been assumed to refer only the body of elected representatives -- for example, who ratifies constitutional amendments.

In addition, "Legislature" would be superfluous in several of the clauses if it meant just whomever the State designated to act for it.  Article V, for example, could then just say that amendments are effective "when ratified by three fourths of the several States..."  Saying "when ratified by the Legislatures of three fourths of the several States..." is meaningful only if "Legislatures" refers to a specific body within the States, not just to the State as a whole.

Or, to put it another way, the Constitution's use of "legislature" of the state is, at minimum, a contrast with the state's executive.  That is, in all these phrases the Constitution is saying that the legislature and not the executive makes the relevant decision (except in some cases when the legislature is unavailable).  But if "legislature" meant just whomever exercises a particular power on behalf of the state (as Professor Epps suggests) then the state could give its executive that power (say, the power to approve amendments) and the executive would then be, paradoxically, the "legislature" for that purpose.  This simply makes nonsense of the text.

Moreover, in ordinary language "Legislature" clearly means the assembly of elected representatives: if someone is introduced as a "member of the state legislature" surely we know that person is an elected representative and not just someone who exercises the power of the state in some way.  I've not seen anything to suggest that this meaning was any different in the eighteenth century.  (The appellants' brief has plenty of examples the other way).

It may be the case, as Professor Epps says, that non-partisan boards are superior to legislatures for drawing election districts.  But the Constitution says "Legislatures".  We shouldn't pretend that means something other than what it obviously does.

The case is unusual in that it is an appeal rather than a petition for writ of certiorari, making it at least somewhat more likely that the Court will hear arguments; its other option is to summarily affirm (rather than just to deny cert.).  I'd be sad (although not necessarily surprised) if the Court went along with such a non-textual reading without really thinking about it.