At Law & Liberty, James R. Rogers (Texas A & M, Political Science): How Independent Can State Legislatures Be? From the introduction:
The Supreme Court identified a reasonable outcome in Moore v. Harper (holding that state legislatures do not possess exclusive constitutional authority over redistricting decisions). But the majority opinion is a mishmash of previous precedent and conventional state practice. The Court’s reading of similar language regarding state legislative decision-making powers in different provisions of the U.S. Constitution remains a muddle of inconsistency.
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In rejecting the [strong version of the independent state legislature approach in Moore], the problem with the majority opinion is not that it reads “legislatures” in Article 1, Section 4 as a synecdoche for full state legislative processes (including executive vetoes and judicial review). After all, the reference to “Congress” in the very same sentence of the Constitution is read naturally as a synecdochical stand-in for the full national-level legislative process.
Rather the problem with the majority’s opinion is one of inconsistent interpretation of similar language across the Constitution. The Supreme Court provided the correct reading of Article 1, Section 4 in this case—or at least the most reasonable reading of this provision. But the majority ties itself into rhetorical knots trying to justify reading the same language differently in other parts of the Constitution.
The irony is that the Court has a long line of precedent in which it has read, and still reads, state-legislative authority in these other, similarly worded parts of the Constitution fully consistent with the most radical versions of independent state legislature theory. As such, the Court’s reasoning in Moore gives lie to so much of the hyperbolic commentary prior to the decision about how novel and radical the “independent state legislature theory” is.
It’s the majority’s attempt to justify its inconsistent reading of the same words in different parts of the Constitution that’s the problem with its opinion….
Posted at 6:38 AM