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07/01/2023

Steven Calabresi on Originalism and Moore v. Harper
Michael Ramsey

At Volokh Conspiracy, Steven Calabresi has this guest post on Moore v. Harper and the independent state legislature theory.  Regarding the Supreme Court's decision:  

The original public meaning of the word "Legislature" in 1787 and 1788, when the U.S. Constitution was ratified, is set out in Samuel Johnson's 1755 Dictionary of the English LanguageHere it is, with examples of the correct usage in Italics:

"Legisla'ture. n.s. 

 [from legislator, Latin.] The power that makes laws.

Without the concurrent consent of all three parts of the legislature, no law is or can be made.
Hale's  Com. Law.

In the notion of a legislature is implied a power to change, repeal, and suspend laws in being, as well as to make new laws.
Addison's  Freeholder, №. 16.
"

The Hale's Com. Law definition refers to the fact that in Great Britain, in 1755, the enactment of a law required the approval of the House of Commons, the House of Lords, and the King.  The Addison's Freeholder, No. 16 definition makes it clear that in half of the United States popular initiatives and referenda are legislatures, because they can change, repeal, and suspend.as well as to make new laws.

Samuel Johnson's 1755 Dictionary of the English Language makes it crystal clear that the Independent State Legislature Doctrine is just plain wrong on originalist grounds.

Chief Justice Roberts' superb opinion for six justices of the Supreme Court emphasized that state senates and state houses of representatives are merely creatures of state constitutions.  They share the power to make laws with governors who in all 50 states have the veto power and with state supreme courts, which in all 50 states have the power of judicial review.  In addition, in half the states elections laws can be made by popular initiatives and referenda.  By 1787 and 1788, state supreme courts had, as Chief Justice Roberts points out, exercised the power of judicial review.  Executive vetoes were also constitutionally provided for in Massachusetts and New York.

It is thus inconceivable that the conventions that ratified the Constitution would have meant the word "Legislature" to mean only state senates and state houses of representatives as opposed the whole lawmaking process of a state.

I generally agree with the Court's conclusion in Moore.  I'm much more doubtful about Professor Calabresi's broader conclusion that any entity with a lawmaking power is a "legislature".  If a state constitution gave the state governor a lawmaking power in some cases (say, through emergency decrees) does that mean the founding generation would call the Governor a "legislature"?  I would need to see a lot more about founding-era usage to reach that counterintuitive conclusion. Just the Johnson definition standing alone seems insufficient, especially as Johnson did go into the question of lawmaking authority vested outside of a representative assembly.