Sometimes “People” = “Legislature”Seth Barrett Tillman

This is a response to Professors Saikrishna Bangalore Prakash & John Yoo, People ≠ Legislature, 39 Harvard Journal of Law & Public Policy 341 (2016) (noted on this blog  here).

Professors Prakash and Yoo’s position is that “[a]s used in the Constitution, ‘Legislature’ refers to a multimember lawmaking body that is distinct from the people.” Prakash & Yoo, supra at 355. I have to admit, that my own intuition is consistent with their view. But I am not sure that my intuition counts for much. The Framers and ratifiers spoke to this issue, albeit unevenly, but what many wrote does not easily square with Prakash & Yoo’s position.

For example, the (unamended) Constitution of 1788 committed the selection of Senators to the state legislatures, and it left the selection of presidential electors to the discretion of the state legislatures. Compare U.S. Const. art. I, § 3, cl. 1 (“The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof ....” (emphasis added)), with id. at art. II, § 2, cl. 1 (“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors ....” (emphasis added)).

Yet, notwithstanding the centrality of the state legislatures to both constitutional processes—selection of senators and selection of presidential electors—John Jay, in Federalist No. 64, wrote: “the president [is] to be chosen by select bodies of electors, to be deputed by the people for that express purpose; and they have committed the appointment of senators to the state legislatures.” The Federalist No. 64 (emphasis added). Jay’s statement is more than somewhat perplexing: under a plain reading of the constitution’s text—at least through our modern eyes—the “people” play no direct role in choosing presidential electors. It is almost as if Chief Justice Jay were saying ... “People” = “Legislature.”

Furthermore, Jay was not alone in making this apparent “mistake.” In Federalist No. 68, Alexander Hamilton stated that “the people of each State shall choose a number of persons as electors, equal to the number of senators and representatives of such State in the national government ....” The Federalist No. 68 (emphasis added); see also Seth Barrett Tillman, The Federalist Papers as Reliable Historical Source Material for Constitutional Interpretation, 105 W. Va. L. Rev. 601, 614 n.45 (2003). Nor was this a lone misstatement by (future Secretary of the Treasury) Hamilton, who repeated this apparent error elsewhere in Federalist No. 68, and also in Nos. 60, 69, and 77. See id. at 614 nn.46–49.

The Federalist’s third author, James Madison, agreed with his two co-authors. At the Virginia ratifying convention, (future President) Madison stated: “[The President] will be the choice of the people at large.” 3 Elliot’s Debates 487 (2d ed. 1836) (emphasis added). Additionally, at the Virginia ratifying convention, Governor Edmund Randolph stated: “The electors must [!] be elected by the people at large.” Id. at 486 (emphasis added).

Now I expect that Prakash and Yoo would argue that the Chief Justice, Secretary, President, and Governor—all were mistaken. But what if they were not mistaken? What if their statements reflected the original public meaning of “legislature” as used in the Electoral College Clause (Art. II, § 2, cl. 1)?

Prakash and Yoo also state: “Consider an absolute monarch with power to make laws. An executive sovereign would not be a ‘Legislature’ in its eighteenth-century sense.” Prakash & Yoo, supra at 355. Here, they are not talking about how “legislature” is used in any specific clause in the Constitution of 1788, but how it was used in every day language of the time. It strikes me that their claim is objectively falsifiable. In the famous exchange between Lord Granville, President of the Privy Council, and Benjamin Franklin, in 1775, just before the start of the Revolution and War of Independence, Granville stated: “You contend that the king’s instructions to his [colonial] governors are not laws .... They are ... so far as they relate to you, the law of the land, for the king is the legislature of the colonies.” 9 Encyclopedia Britannica 713 (1879) (emphasis added and original emphasis removed). I do not suggest that Granville’s legal position was correct, but I think he knew how to use the word “legislature,” which here refers to the King, and not to a multimember elected or appointed body. If you want a more immediate American source: Congressman William Findley, who had been an anti-federalist member of the Pennsylvania ratification convention, stated on the floor of the U.S. House of Representatives: “[Montesquieu] ... demonstrates the absurdity of the legislature sitting in judgment on offenders against their own laws, even in an absolute monarchy where the king is the legislature ....” 6 (part 2) American Register 85, 90 (1809) (emphasis added) (available on Hein Online). See e.g. Nathanael Vincent, Antidote 114 (1779) (using “universal legislature” to refer to the Christian deity).

Finally, any number of clauses in the Constitution of 1788 use the term “legislature.” In regard to some of these clauses, e.g., Article V, practice since 1789 has been that the state legislative houses act alone, without participation of state governors, even where governors are part of the normal law-making process. In respect to other clauses, e.g., the Elections Clause (Art. I, § 4), practice has been that the entire law-making apparatus of the State is to be used, including both the state legislative houses and state governors. Prakash and Yoo discuss this dichotomy. See Prakash & Yoo, supra at 350ff. But they do not tell us which line of practice and judicial authority drawing on that practice is incorrect. Does the Constitution’s use of “legislature” refer to just the state legislative chambers or does it also permit the use of the entire regular law-making apparatus, including governors? If the Constitution permits states to use either route, or if some clauses require one process and forbid the other, then perhaps Prakash and Yoo’s reliance on intratextualism—across clauses and articles—is misplaced because the Constitution of 1788’s usage in regard to “legislature” varies (or may permissibly vary) across provisions.

I do not suggest that Prakash and Yoo’s position is frivolous. They have some decent arguments. But they do not deal with obvious counter-authority (e.g., The Federalist and ratification debates), and they make empirical claims—claims central to their argument—that are (in my opinion) plainly wrong (e.g., the 18th century meaning of “legislature”).

Arizona State Legislature v. Arizona Independent Redistricting Commission is not a thing of beauty and joy forever. In terms of judicial craftsmanship, it is probably one of the Court’s weaker decisions. Some of its arguments, as Prakash and Yoo point out, can be criticized: they are methodologically unsound, and they are based on contestable policy assumptions. But that does not mean that the Court’s decision was wrong. The U.S. Constitution should not be used to strike down state law based on little more than closely held personal intuitions about 18th century English usage. Nor should state law be invalidated for reasons that leave us thinking we are correct on a mere balance of the probabilities, i.e., 50% + epsilon. If unconstitutionality beyond a reasonable doubt is too high bar, we still need something approaching Thayer-type certainty. In my view, Prakash and Yoo have not met that bar.