Amar and Amar on Independent State Legislatures

Following various lawsuits during the 2020 election, which are now being echoed in North Carolina by related claims that are different from those in North Carolina, there was renewed interest in the Constitution’s mention of “legislature” as a role in setting elections rules (as Josh points out below).

One such piece, written by Akhil and Vikram respectively, condemns the doctrine. The piece is titled Eradicating Bush-League Arguments Root and Branch: The Article II Independent-State-Legislature Notion and Related Rubbish, and it will be forthcoming in the Supreme Court Review, for which I am one of the faculty editors.

This is the intro:

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The following is a summary of our findings. Please show whYour Name BushLeague Arguments They were right twenty years ago
agoHow? They were Shown To be incorrect Sound scholarship In the The following years were marked by changes Why They Are Even More It is wrong Today, Many thanks for Recent and Dispositive Supreme Cour case law. AYou can find it at www.ll.comEnsible The constitutionalistsWhichever The Court Oder You can leave it. Which?
OriginalistS or precedentListSIt doesn’t matter if you are right or left of the centershould Burial Bush.

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Beyond the ISL Ideas at the Heart of the RehnquistScaliaThomas concurrence. Bush This was A case can be mistaken in almost any way possible. IYou were ever here Bad seed. Bush Was it?. The Recent efforts to revitalize and rehabilitate BushThe reputation of’s Are So Real cause for concern Jurisprudential Concerneven alarm. WToday, we need to urge Cour To Take a quick and precise break Bush Get it done as quickly as possibleAnd in all cases, Well The next contest for the presidency electionThis can be very distressing. Enough The Court will not do any extra work.

These authors discuss a wide range of topics, and even their differences with Michael Morley’s recent article, which currently stands as the most prominent academic defense of an independent state legislature idea.

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Beyond Amar & Amar, here are several more articles via The Originalism Blog (1, 2), where Mike Ramsey observes that while he believes (“on a quick reflection”) the Amar brothers seem correct, their view may not resolve the current litigation about court-drawn maps:

This issue has not been examined closely. This language is likely to have given power to state legislatures acting in accordance with their (state-specific) constitutional procedures. It’s not surprising that the early state constitutions after ratification contained federal election regulations. However, it does seem a different matter. As the post describes, it “congressional mapping drawn by”. [the]The supreme court of the state. It is not the legislature that serves as state supreme court. This is a basic proposition in the eighteenth-century separation of power. A map that was drawn by the legislature can be declared unconstitutional by the state supreme court, I believe, because it does not comply with the state constitution’s requirements. The state court can’t draw or order the use of a map that was not drawn by it. There isn’t any precedent from the founding era for a state supreme judge deciding “Times, Places, and Manner” of holding elections.

It’s wonderful to see an increase in attention to history and text when it comes to these questions. It’s a great thing that the Supreme Court Review is going to be a part of this.