Academic journal article Harvard Journal of Law & Public Policy

People (Not Equal to) Legislature

Academic journal article Harvard Journal of Law & Public Policy

People (Not Equal to) Legislature

Article excerpt

In Arizona State Legislature v. Arizona Independent Redistricting Commission, (1) the Supreme Court considered whether a commission, established by popular initiative, could draw congressional districts. Like other states, Arizona had stripped such power away from its legislature in order to overcome the partisan infighting and self-dealing that arises when politicians draw their own electoral districts. (2) Arizona's scheme, however, seemed to run counter to the plain text of Article I, Section 4 of the U.S. Constitution, which vests the regulation of congressional elections in "each State by the Legislature thereof." (3)

On behalf of a 5-4 majority, Justice Ruth Bader Ginsburg held that the Constitution's Elections Clause did not refer solely to an institution, distinct from the people, with the power to make laws-what common sense typically might consider a "Legislature." (4) Instead, the Court concluded that the Framers used "Legislature" to refer to any entity authorized to make laws. (5) According to the Court, the Framers would have understood "Legislature" to mean the "power that makes laws" following the first edition of Samuel Johnson's Dictionary of the English Language, published in 1755. (6) Because the people are the ultimate source of all power, they can establish a separate lawmaking body with plenary legislative authority, employ voter initiatives as a method of popular lawmaking, and delegate specialized legislative authority to a redistricting commission. As the Court put it, "the people may delegate their legislative authority over redistricting to an independent commission just as the representative body may choose to do so." (7) The Court believed that permitting the people to redistrict kept true to its Election Clause precedents. (8) In sum, the Court essentially held that the people of Arizona, when acting via initiative, are a "Legislature" under the Elections Clause.

Though Arizona State Legislature relied upon text, structure, history, and precedent in reaching this conclusion, we believe these methods yield a different result. We agree that a "Legislature" is "[t]he power that makes laws," (9) with "power" a synonym for an "entity." Thus, a "Legislature" is an entity that makes law. But not every entity that makes laws is a legislature. When a dictator makes laws unilaterally, he or she is not a legislature. Similarly, when the people make laws, be they statutes or constitutions, they are not a legislature. So although all legislatures are lawmakers, not all lawmakers are legislatures.

In a way, the Court read the word "Legislature" out of the Elections Clause. If that Clause had provided that the methods for holding federal elections "shall be prescribed by each State," rather than "shall be prescribed in each State by the Legislature thereof," the majority's reading would have been plausible. Given the Election Clause's actual wording, however, the Court should have read Article I, Section 4 to give effect not only to "State" but to "Legislature" as well. After all, a commonly accepted rule of interpretation strongly suggests that every word in the Constitution be given meaning. (10)

The reference to a particular state institution -"the Legislature"-seems quite meaningful when we consider other uses of "State" that omit reference to a particular institution. For instance, a clause in Article I, Section 8 reserves to the "state[s]" the power to appoint officers of state militias and to train the militia. (11) This leaves it to the states to determine which of their institutions ought to appoint officers and train militia members. In other instances, the Constitution bars certain acts by a state, which prohibits every entity of a state from taking the measure. By use of the words "No state shall," Article I, Section 10 and the Fourteenth Amendment (12) impose limits applicable to all entities that are properly seen as the state, including legislative, executive, and judicial institutions. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.