Saikrishna Prakash (University of Virginia School of Law) & John Yoo (University of California at Berkeley School of Law; American Enterprise Institute) have posted People ≠ Legislature (Harvard Journal of Law and Public Policy, Vol. 39, No. 2, 2016) on SSRN. Here is the abstract:
Article I, Section 4 of the U.S. Constitution vests the regulation of congressional elections in “each State by the Legislature thereof.” In Arizona State Legislature v. Arizona Independent Redistricting Commission, 135 S.Ct. 2652 (2015), the Supreme Court held that the Constitution’s Elections Clause does not refer solely to an institution, distinct from the people, with the power to make laws — what common sense typically might consider a “Legislature.” Instead, the Court concluded that the Framers used “Legislature” to refer to any entity authorized to make laws, such as the people through popular initiative.
We argue that the Court has misread the text, structure, and history of the Elections Clause. A “Legislature” is an entity that makes law. But not every entity that makes laws is a legislature. When a dictator makes laws unilaterally, he or she is not a legislature. Similarly, when the people make laws, be they statutes or constitutions, they are not a legislature. Given the Clause’s actual wording, moreover, the Court should have read Article I, Section 4 to give effect not only to “State” but to “Legislature” as well. A commonly accepted rule of interpretation strongly suggests that every word in the Constitution be given meaning. Reading “Legislature” to refer only to state assemblies, and not to the peoples of the states, more cleanly fits within the structure of Article I, Section 4. It also makes better sense of the use of the word “Legislature” in other parts of the Constitution. Reading the Elections Clause as empowering only state assemblies comports best with the surrounding history of the Framing and Ratification of the Constitution.
Plainly correct. in my view.
UPDATE: In the same issue of the Harvard Journal of Law and Public Policy, Derek Muller (Pepperdine) takes on one-person-0ne-vote: Perpetuating 'One Person One Vote' Errors. From the introduction:
“One person, one vote” has no plausible basis in the text or original meaning of the Fourteenth Amendment of the United States Constitution. More than fifty years after Baker v. Carr, however, this mantra remains essentially inviolable. …
…
This Article examines an under-discussed element of the reapportionment cases—the extent to which the parties themselves and the clerks to the Supreme Court Justices resisted advancing the kind of sweeping claims that the Supreme Court ultimately embraced. The Court’s errors in the redistricting cases of people arose in spite of repeated guidance from the litigants before the Court and the Justices’ own clerks to decide the cases in a narrower fashion or pursuant to existing constitutional standards. Through archival research, this Article demonstrates that all parties were reluctant to redefine all state legislatures under a single (and under-theorized) political definition. The Court took little heed of such modest proposals and instituted sweeping claims about how state legislatures ought to look. The Article then identifies the circumstances in which the Court finally embraced restraint—it permitted States to choose an appropriate population basis for drawing legislative districts, leaving the matter to the sound discretion of the States. The Article identifies a lost footnote in an early draft of Burns v. Richardson that would have articulated the most lucid basis for deferring to the States as they selected the appropriate redistricting population. The Article then reflects on the proposed expansion of these sweeping claims in Evenwel v. Abbott, an attempt to return to the judicial nationalization of state legislatures articulated in Baker and its progeny. The Article calls for an end to these redistricting errors and for greater deference to the States.
Posted at 6:25 AM