The Court’s recent decision in Moore v. Harper, 600 US __ (2023), holds on the merits (in an opinion by Roberts, C.J., for the 6 to 3 majority) that the Elections Clause (Art. I, Sec. 4, Cl. 1) does not “insulate[ ] state legislatures from review by state courts for compliance with state law.” (Roberts, C.J., slip op., p. 11.) Prof. Steven Calabresi has written a post celebrating the “superb” majority opinion (noted on this blog here). I would strongly disagree with that characterization, but here I’ll examine Prof. Calabresi’s post and save my criticism of the Chief Justice’s opinion for another day.
The Elections Clause, in relevant part, recites:
The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof[.]
Prof. Steven Calabresi asserts that the definition of “legislature” contained in Dr. Johnson’s 1755 dictionary “makes it crystal clear that the Independent State Legislature Doctrine is just plain wrong on originalist grounds.” With respect, I believe there are two fundamental flaws in his analysis.
First, his note is a classic example of what I call the Paradox of Originalism, which I’ve discussed many times on this blog (most recently here). With regard to the word “legislature” and the context in which it appears in the Elections Clause, nothing suggests that that word or context has a meaning today that differs in any way from the meaning in 1789. If, therefore, the mere antiquity of the Constitution—and not anything about the word “legislature” or the context in which it appears—compels reliance on a dictionary that is roughly contemporaneous with the Constitution to ascertain the meaning of words and phrases in the Elections Clause, then how do we go about ascertaining the meaning of the words and phrases that Dr. Johnson’s dictionary uses to define and provide usage examples for the word “legislature”? After all, Dr. Johnson’s dictionary is decades older than our Constitution. So, knowingly or unknowingly, Prof. Calabresi has stepped into an infinite regress, and it’s a long way down.
Putting the Paradox of Originalism entirely aside, there is a second flaw in Prof. Calabresi’s note. Dr. Johnson defines “legislature” as: “The power that makes laws.” Prof. Calabresi asserts that the examples of usages cited in Dr. Johnson’s dictionary and the Chief Justice’s opinion in Moore establish that the States’ legislatures “share the power to make laws with governors who in all 50 states have the veto power and with state supreme courts, which in all 50 states have the power of judicial review.” I think this conclusion is demonstrably incorrect, because there is a fundamental difference between the power to make laws (wielded by legislatures) and both the power to unmake laws (wielded by courts that undertake judicial review of already-enacted laws) and the power to prevent laws from being made (wielded by governors who veto bills that are merely proposed laws).
The power of judicial review is the power to unmake laws; it is the power to strike down laws that violate some relevant constitution. Striking down laws is not at all the same thing as making laws. Consider this: The legislature of a State enacts three statutes. Subsequently, Statute 1 is reviewed by the State’s supreme court and is upheld as consistent with the State’s constitution; Statute 2 is reviewed by the court and is struck down as inconsistent with the constitution; Statute 3 is never reviewed by the court.
It is indisputable that Statute 3, which was never subject to judicial review, is fully as much the law as is Statute 1, which was reviewed and upheld by the court. Judicial review played no role whatsoever in making Statute 3 the law. Moreover, judicial review of Statute 1 did not make Statute 1 a different or somehow ‘stronger’ law than it was before the review; judicial review did not change Statute 1 at all. Statute 2 is no longer the law after judicial review, but the court did not make law—it unmade law. In terms of Dr. Johnson’s definition of “legislature,” judicial review is not a power exercised by the legislature, because the legislature is the power that makes laws, while judicial review is a power that either leaves already-enacted laws unchanged, or unmakes already-enacted laws in whole or in part.
I add the last qualifier because, if the provisions of a statute are severable, a court may strike down part of a statute and preserve the rest. This does change the statute, but it does not amend the statute, which is what a legislature does. What the court does with a severable statute is to unmake part of the statute; it does not make law by adding to the statute new provisions that it did not formerly contain.
Finally, Prof. Calabresi makes an analogous mistake with regard to a governor’s veto power, which is a power that prevents laws from being made in the first place. A governor vetoing a bill is not by any stretch of the imagination exercising a power “to make laws.” Vetoes in fact prevent bills from actually becoming laws; this is the opposite of making laws.
Posted at 6:38 AM