By Dan T. Coenen
May 24, 2023, 7:45 AM

This Commentary provides an overview of my March 2023 piece, “Constitutional Text, Founding-Era History, and the Independent-State-Legislature Theory,” included in Volume 57 of the Georgia Law Review.

Much ink has been spilled on the so-called independent-state-legislature theory.  Why, then, another article?  The short answer is that this article, in contrast to most others, focuses solely on the text of the Constitution and the founding-era history that helps to illuminate its then-understood meaning.  To be sure, others have reflected fruitfully on these matters.  Professor Hayward Smith, for example, has done important work in explaining how the relevant text of the Constitution parallels the precursor text of the Articles of Confederation, thus indicating that the Framers meant to keep in place the pre-Constitution practice of state-court review under state constitutions of state-made federal-election laws.  Other analysts have made powerful originalist arguments, too.

This article adds to these earlier efforts in three main ways:  First, it advances several new text-based and originalist arguments against the independent-state-legislature theory, including new arguments rooted in the Federalist Papers.  Second, this article offers insights and evidence—again, drawn in part from the Federalist Papers—that build out and bolster arguments already put forward by others.  Third, this article offers a new organizational structure for taking on this subject by (1) moving systematically from text to history, including the history of both the Elections Clause and framing-era understandings of the overall architecture of state and federal governance, and (2) separately considering what might be called the “full bore” independent-state-legislature theory (under which federal courts would always overturn state-court rulings that state legislation dealing with federal elections abridges state constitutional requirements) and what might be called the “hallmarks of legislation” independent-state-legislature theory (under which federal courts often could and would disallow such rulings).

This analysis covers much ground.  Some of the key points are these:

1. The Elections Clause of Article I, Section 4, provides:  “The Times, Places, and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.”  Advocates of the independent-state-legislature theory focus on the words “by the Legislature thereof” as used in this Clause.  They argue in effect that these words mean “by the Legislature thereof and only the Legislature thereof,” thus foreclosing the invocation of state constitutions by state courts to overturn state legislation to the extent it concerns federal elections.  This textual argument fails, however, because the relevant text does not say what its proponents would have it say.  That is, the Elections Clause does not say “by the Legislature thereof and only the Legislature thereof,” far less “by the Legislature thereof notwithstanding the will of the people of the state as a whole.”  All of this matters greatly because it was well understood at the time of the framing (based on basic and celebrated republican notions of popular sovereignty) that state legislative acts would be subject to state judicial review so as to give effect to state constitutions put in place by the state’s own citizens.

2. In addition, proponents of the independent-state-legislature theory fail to consider all of the text of the Election Clause.  The whole Clause, after all, gives a power to “the Congress” to prescribe the same sort of laws that can be made by “the Legislature” of the state.  But no one (at least to my knowledge) has argued that the Clause thereby creates an independent-Congress doctrine, thus freeing Congress from judicial review of any actions it might take pursuant to the Clause.  The principle of consistent construction thus leaps into view.  Put simply, if the words “the Congress” do not mean “the Congress and only the Congress”—thus negating any judicial role in policing the laws that Congress might pass in exercising this particular power—then how can the reference to each state’s legislature be read to mean, in both a peculiar and nonparallel way, “the Legislature thereof and only the Legislature thereof”?

3. One answer proponents of the independent-state-legislature theory might give is that one has to read the Constitution as a whole ininterpreting the Election Clause.  Following up on this thought, they might say (and, indeed, some have said), that the whole Constitution—particularly by way of the Fourteenth, Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth Amendments (not to mention the many federal laws enacted pursuant to their Enforcement Clauses)—erects a myriad of safeguards against abuses by state legislatures as they wield their power to enact federal election-related laws.  Thus, so the argument goes, there is no great need to permit judicial review under state constitutions for laws of this kind.  The problem with this argument is that—even if it might otherwise make some sense—it is not an originalist argument for a simple reason:  At the time of the framing, the Fourteenth, Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth Amendments did not exist.  Indeed, even the Bill of Rights applied only to the federal government and thus did not put any limits on state legislatures.  The result is that, as the Constitution was framed and ratified, the only judicial check on state legislative abuse in enacting federal-election-related laws came in the form of state courts applying state constitutions. It simply makes no sense to believe that the Framers and ratifiers meant to get rid of this check if they were concerned about state legislative abuses in this context.

4. Were they?  Oh yes, they were.  Indeed, the history of the Elections Clause itself reveals intense worry among the Framers and the ratifiers that state legislatures would abuse this power.  To be sure, the Elections Clause created the possibility that Congress would step in to undo some such abuses.  But not one word in the framing or ratifying history suggests a design to scuttle already-well-recognized companion checks on such state legislative abuses—in particular, the check provided by state-court judicial review—by assigning the task of remediation only to Congress.  What is more, the imposition of this unstated and out-of-the-ordinary limitation on state judicial power would have contravened the most basic tenets of the Federalist leaders who won the day when the Constitution was ratified.  More specifically, the framing-era materials make clear that, among the foundational ideas those leaders embraced, were these:  (1) that, due to the risk of tyrannical majoritarian action, the legislative branch of government was the branch most in need of structural constraints within American republican systems; (2) that the need for checking legislative abuse was especially acute with regard to state legislatures, including because they were distinctly susceptible to capture by localized majority factions; (3) that this supposition had been powerfully borne out in real life during the regime of the Articles of Confederation as state legislatures during that time period repeatedly enacted oppressive faction-favoring measures; (4) that, within republican systems, a key (if not the key) restraint on legislative overreaching lay in judicial review, especially in those many states that did not, for example, provide a gubernatorial-veto checking mechanism on legislative enactments; (5) that, on the other hand, there was little to be feared from recognizing this judicial power because, in its nature, the judicial branch was by far the weakest branch of government; and (6) that in actual state practice during the pre-ratification period, the danger of judicial timidity in wielding the judicial-review power had shown itself to be a far greater problem than the danger of judicial excess.  Put simply, the Framers greatly feared state legislative abuses—especially as they wielded their powers to create rules for federal elections—and they celebrated the institution of judicial review, including at the state level, as a means of counteracting such abuses.  Against this backdrop, it makes no sense to conclude that the Framers would have made or did make (especially without ever saying so) the bizarre, one-field-of-law-only choice to eliminate state-constitution-based state-court judicial review for, and only for, state laws concerning federal elections.

5. Nor is there any basis in principles of constitutional federalism for authorizing federal courts to protect state legislative decision-making in this specialized way.  Rather, those principles cut sharply in the other direction.  Why?  Because the independent-state-legislature theory at bottom calls on federal courts to override the choice of each state’s citizenry about what institutions established by that state’s citizenry should and should not make a critical set of decisions about the rights, and thus the lives, of the individuals who make up that state’s citizenry.  To say the least, it would clash with core notions of state republican self-governance to allow federal courts to reconfigure state-established constitutional rights and state-established institutional structures—all put in place by the state’s people in the solemn act of framing their own constitution—in such a fundamental way.

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