Dan T. Coenen is a University Professor, a Josiah Meigs Distinguished Teaching Professor, and the Harmon W. Caldwell Chair in Constitutional Law at the University of Georgia School of Law. Since 1987, Professor Coenen has served on the faculty of the University of Georgia School, where he teaches in the areas of contracts and constitutional law. His scholarship includes three books: “The Story of The Federalist: How Hamilton and Madison Reconceived America” (2007); “Constitutional Law: The Commerce Clause” (2004); and “Principles of Constitutional Structure (2022)” (co-authored with Michael Coenen). His articles have appeared in such publications as the Duke Law Journal, the Iowa Law Review, the Minnesota Law Review, the Northwestern University Law Review, the Cornell Law Review, the Yale Law Journal, the Fordham Law Review, and the Michigan Law Review. In 2020 he was recognized as the inaugural recipient of the University of Georgia Law School’s Faculty Research Award, based on the assessment of a committee of independent professional reviewers, for his article “Quiet Revolutions in Constitutional Law” in the Boston University Law Review, and in 2021 he again won this award for his article “Reconceptualizing Hybrid Rights” in the Boston College Law Review. His most recent article, “Constitutional Text, Founding Era History, and the Independent-State-Legislature Theory” was featured by the Brennan Center and included in several amicus curiae briefs submitted in Moore v. Harper, which is now pending before the U.S. Supreme Court. Professor Coenen, who also has received many teaching-related awards and recognitions, previously served as a judicial clerk for U.S. Supreme Court Justice Harry A. Blackmun and for Chief Judge Clement F. Haynsworth, Jr. of the U.S. Court of Appeals for the Fourth Circuit. Before entering academia, he worked at the Charlotte, N.C, law firm, Robinson, Bradshaw & Hinson, P.A.
To train the next generation of lawyers in the law and practice of voting rights, ballot access, campaign finance, election administration, and democracy protection.
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:
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