Thoughts on the Independent Legislature Theory

The Constitution grants specific powers to the Legislatures of the States in four places: setting the rules for Federal elections, selecting electors of the President, electing senators and ratifying constitutional changes. The Supreme Court has just agreed to hear a case from North Carolina in which the state courts overruled the legislature in establishing the districts for electing members of the House of Representatives. Many articles have appeared on the supposedly dire consequences of a decision upholding the independent legislature theory.

Now, the framers could have meant “Legislature” to be shorthand for “State as provided by its constitution and laws”, and that is not impossible. It is also unknowable, but all the articles I have read assume that is absolutely what was meant. At that time, there was little difference. Only the governor of Massachusetts had a veto (which the framers largely copied for the Federal constitution so they knew about it). The governor of New York was a member of a council of revision with judges, but that was it. The Legislature was in general without oversight.

At the same time, the idea that the framers contemplated a whole separate jurisprudence of federal regulations adopted outside the framework of state law by each legislature seems implausible. As to judicial review, the concept existed but courts were not routinely striking down state laws. The idea that courts had a role in districting is hundreds of years in the future. Reynolds v Sims is a 1964 case and…