Moore v. Harper, the "independent state legislature" case argued at the Supreme Coury last Wednesday, continues to generate a flood of commentary, much of it with originalist overtones. Here are just a few additional posts of interest:
At NRO Bench Memos, Ed Whelan: Two Observations on Oral Argument in Moore v. Harper.
At Volokh Conspiracy, Steven Calabresi responds to an earlier critique by Ed Whelan of Calabresi's Wall Street Journal op-ed on Moore: Donald Trump's Constitution and Moore v. Harper. Ed Whelan has a further response here.
The Election Law Blog has (naturally) numerous posts — here are two regarding history:
Travis Crum: The Fifteenth Amendment and the Independent State Legislature Theory. From the introduction:
The Supreme Court recently heard oral argument in Moore v. Harper, which concerns the definition of “legislature” in Article I’s Elections Clause and the so-called independent state legislature theory (ISLT). A core dispute in the case is whether—and to what extent—state constitutions can restrain state legislatures’ regulation of federal elections. Accordingly, the parties and the Justices deliberated over historical examples of state legislatures regulating federal elections. However, this discussion overlooked an important historical episode concerning the analogous power of “legislatures” exercising ratification authority under Article V.
In an Essay published earlier this year, I expanded on the famous debate between Bruce Ackerman, Akhil Amar, John Harrison, and others about the lawfulness of Reconstruction. As my Essay uncovers, the Indiana state legislature considered itself unrestrained by the state constitution when it ratified the Fifteenth Amendment.
Tabatha Abu El-Haj: The Profound Ahistoricism of Moore v. Harper. Some excerpts:
Few [commentators] have highlighted the more profound ahistoricism of Petitioners’ position. Petitioners make much of the dearth of evidence of state court decisions striking down state legislation regulating federal elections. But they present no information about how elections were administered for much of the nineteenth century.
Indeed, a reader of the briefs—an earnest law clerk, for example—could easily be left with the impression that elections in the early nineteenth century worked essentially like they do today. Nothing could be farther from the truth. The kind of time, place, and manner regulation at the heart of Moore v. Harper largely did not exist until the late nineteenth century.
…
An earnest reader of the briefs could just as easily come away with the impression that, like today, Congress was divided into single-member districts in the early nineteenth century and that states diligently redistricted each decade, as required by the Constitution. But it was not until the Apportionment Act of 1842 (yes 1842!) that single-member congressional districts were mandated. At the time of its enactment, there were twenty-six states in the Union. 10 states used at large voting for House elections. Petitioners offer no information about how often states actually redistricted before 1842 (or after). This silence is particularly glaring given that in the period prior to Baker v. Carr, despite the constitutional requirement, states frequently did not redraw their state or congressional maps. In the absence of such information, what exactly can be made of the fact that no state court appears to have invalidated a state legislature’s congressional map on substantive state-constitutional grounds?
Moore may end up being the most important originalist case of the term, at least in terms of the amount of commentary it generates. I continue to think the case itself is easier than many people are making it, but the larger questions of the independent state legislature issue are indeed profound.
Posted at 6:06 AM