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Seth Barrett Tillman on the Arizona Re-Districting Case
Michael Ramsey

Seth Barrett Tillman sends this comment on the Arizona re-districting case I discussed earlier (the issue being whether re-districting can be given by referendum to a commission when the Constitution says it must be done by "the Legislature"):

There is a lot of slippage in regard to how the federal Constitution uses "legislature". Sometime it refers to the legislative chambers. See Article V. But other times it refers to the statutory law-making power of the state which includes the governor's veto power if the governor has such a power under state constitutional law. See Article I, Section 4, Clause 1. 

I wrote about this in 2005, in Seth Barrett Tillman, Betwixt Principle and Practice: Tara Ross’s Defense of the Electoral College, 1 N.Y.U. J.L. & Liberty 922, 925-26 (2005) (reviewing Enlightened Democracy: The Case for the Electoral College (2004)) (footnotes omitted):

When the Bill of Rights -- the first amendments to the Constitution -- was proposed, the ratifying States generally acted by resolution in ratifying amendments. Governors -- even if they were part of the lawmaking apparatus with regard to statutes -- were generally excluded. The term "legislature" in Article V was understood to embrace not the lawmaking or statute-making apparatus of the State, but just the legislative chambers. This view was not  universally shared. New York acted by bill, and Governor Clinton participated. Longstanding practice, not the text of the Constitution, has "ratified" the non-New York view with regard to the meaning of Article V: governors do not participate in the Article V process for ratifying amendments to the Constitution. [Tara] Ross believes and wants you to believe that just because the term "legislature" in Article V embraces only the legislative houses, the word "legislature" in Article II, Clause 2 -- "each State shall appoint, in such manner as the legislature thereof may direct, a number of electors equal to the whole number of Senators and Representatives to which the State may be entitled" -- must have the same meaning. Not so fast. Cannot the term have a variety of meanings depending on context? For example, Article I, § 4 states that "the times, places and manner of holding elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof." Our unbroken history since the Founding is that here "legislature" refers not to the State's legislative houses, but to the lawmaking apparatus of the State. Here, state governors are and have always been included if they are part of the lawmaking apparatus under state constitutional law. Thus, the term "legislature" might have a variety of textual meanings depending on context. At least that was the position of Chief Justice Taft.

One could reasonably make the argument that the term "legislature" in Article II incorporates whatever method or methods each State's constitution permits for lawmaking, which might encompass statewide referendums as Colorado has chosen. So what does the term "legislature" mean in Article II? Answer: we do not know. And the federal courts have not told us. But if the term is ambiguous, if it will equally embrace two constructions, and one such construction preserves the constitutionality of state law and state powers and  simultaneously enlarges the zone of democratic action by American voters, it is obvious which construction the courts and commentators ought to pick.”

Professor Hasen in this publication [35 Hastings Const. L.Q. 599 (2008)] (and perhaps others) has examined this issue in greater detail than I did in my 2005 book review.

Looking back, I see the textual weaknesses of my 2005 view which you point out in your post. But it seems to me that as long as state constitutional law is consistent with the Guarantee Clause and equality rights in the 14th Amendment, a state has wide discretion in vesting the legislative power in the legislative design of its choice, which might very well include referenda, etc.

I hesitate to out-textualist Professor Tillman, who's as careful and committed a textualist as can be found.  But here I think I disagree with his ultimate conclusion.

First, I think it's dubious to read the same word to have different meanings in different articles of the Constitution.  Of course, it's not out of the question.  And it's very interesting that post-ratification practitioners apparently thought "Legislature" sometimes included the governor and sometimes did not.  But I am not sure what to make of that history without knowing why they treated the two differently.  Nor do I see anything in the context (apart from the peculiar post-ratification history) to explain why "Legislature" would mean one thing in one place and one thing in another.

But in any event, I don't think we need to solve that problem to deal with the Arizona State Legislature case.  I'm willing to accept that "the Legislature" meant "the Legislature acting through its constitutionally described processes," including either with the Governor's approval and simple majority or without the Governor's approval and a supermajority.  (Why that would not also apply to Article V is a mystery, but one we can leave aside).

However, it is a very different matter to then say that "the Legislature" means any person or entity given lawmaking authority by the state constitution.    By that reasoning, if the state constitution gave the Governor alone the power to regulate elections to the federal Congress, then the Governor would be "the Legislature" for that purpose.  That is so far from the textual meaning of "the Legislature" (which is typically understood as the exact opposite of the executive acting alone) that I would want to see some founding-era commentary or practice suggesting that meaning before giving it any credence -- and I bet it can't be found.

Of course, eighteenth-century separation-of-powers theory recognized that lawmaking power could be vested in various persons and entitites, not just in a representative assembly.  But merely having lawmaking power did not make a person or entity "the Legislature".  No one at the time would have described the French king as "the Legislature" even though he had power to make law by decree. 

Further, Article I, Section 4 says that elections are regulated "in each State by the Legislature thereof".  As I suggested in my prior post, "by the Legislature thereof" is redundant if this phrase means only "by each State, in the manner it decides."  The only way to make "the Legislature thereof" meaningful is to read it to refer to a specific branch of the state government.

I'll concede that the Framers were likely not thinking of the situation of the people acting by referendum.  They likely wrote "the Legislature" to distinguish from the executive or the judiciary.  But the whole of the people is not "the Legislature" any more that the executive or the judiciary is, even when they exercise lawmaking power.

In any event, I'm further persuaded that this is a very interesting case in terms of constitutional interpretation.