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 relies on the fourteenth amendment.

Nevertheless, in 1920, the citizens of Ohio amended their constitution to require that when ratifying a change to the federal constitution the legislature had to abide by a referendum. Eventually, this ended up at the Supreme Court in 1922 in Hawke v Smith. The court established the independent legislative authority principle and ruled that the legislature was acting under delegated power from the Federal constitution and was not bound by state constitution or law. Had they not so ruled women would not have the right to vote. One can speculate that they were looking for a way to avoid that outcome, but nevertheless that was their ruling.

Thus, calling the independent legislature theory a ridiculous, right-wing idea is going a little far. I am sure those making those statements are in favor of women having the right to vote. I saw a post from Laurence Tribe in which he dismissed this precedent by saying…