The major question is whether we can give a consistent answer to the meaning of this term along with a large number of different constitutional clauses which fits the text and provides a plausible response.
This is essential for several reasons. To begin with, it provides an originalist response to a difficult interpretive question–something important in its own right which also demonstrates the power of originalism as a interpretive method. Nonetheless, it is also important as it addresses several of the most significant questions involving elections lately –questions like (1) whether courts may utilize state constitutional provisions to reestablish legislation passed by state legislatures that govern the presidential election and (2) whether state referenda may be used to bypass state legislative redistricting conclusions by delegating redistricting decisions to independent commissions.
The Constitution’s regular use of”state legislatures” requires two chief concerns to be answered. 1 question involves whether an entity aside from the state legislature can take an action as soon as the Constitution specifies that action to the state legislature. Does that provision allow the state Constitution to override the state legislature’s decision concerning the manner of appointing the electors? And if it does, will the courts apply that constitutional provision to the detriment of the state legislature? From the 2020 election, the Pennsylvania Supreme Court utilized the state to override the election law the state legislature had enacted. While the United States Supreme Court refused to hear the challenges on this conclusion, the issue remains whether that activity was constitutional under the U.S. Constitution.
A similar issue that appears here occurs when the country, either via its own constitution or various other way, assigns a conclusion of the state legislature to a different entity. For instance, the Constitution provides that”the Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” Does this provision allow the state the voters through a referendum to assign redistricting decisions into an independent commission as opposed to the state legislature? Some states have done precisely that and the Supreme Court at 2015 accepted of the activity at Arizona State Legislature v. Arizona Independent Redistricting Comm’n. My short answer to these questions is that the United States Constitution prevents the state or the Republicans from assigning one or more of these decisions to anyone aside from the state legislature.
The next issue raised by the state legislature provisions involves which entity produces a decision when the state legislature is delegated that task. Is the decision to be created by the state legislature appropriate –which is, the two legislative houses but with no opportunity for the governor to veto it? Or is it to be made by the state legislature with opportunity for a gubernatorial veto? At times the clinic is for one (for instance, state legislative ratification of constitutional amendments), in other times the clinic is for another (state legislative conclusion of the times, places and manner of holding congressional elections). Is the clinic correct, and if yes, why? I argue that the Constitution draws a distinction between jobs for the state legislature that demand enacting laws and tasks which do not.
Let me begin with the first question. Can the state ministry make a determination rather than the state legislature? The short answer is no. The U.S. Constitution means exactly what it says. The fact that the state legislature has been delegated the conclusion means the state (especially if enacted in part by an entity other than the state legislature) cannot override the state legislature. The U.S. Constitution takes priority over the state ministry. This implies that the Pennsylvania Supreme Court acted unconstitutionally prior to the 2020 presidential election when it relied upon the state to override the state statute which had required a trade in ballot to be received by 8:00 PM on election night and instead held that the ballot could be obtained up to three days after the election.
Similarly, if the people of the nation, via a popular vote allowed by the state constitution, then assign the conclusion about how to hold congressional elections into a redistricting commission, then that too is unconstitutional. The Supreme Court at Arizona Independent Redistricting Comm’n (2015) sought to defend the constitutionality of these commissions by asserting that the people of the nation are working legislative power and for that reason represent a state legislature. But the expression”state legislature” does not refer to anyone or whatever moves legislative power. Rather, it refers to a particular type of association and for that reason the people of the nation in a popular vote aren’t a state legislature. Though the Supreme Court’s approval enables countries to combat gerrymandering through popular referenda and redistricting penalties, it does so in an unconstitutional manner. The only real authorized methods to combat gerrymandering is by way of state or congressional legislation.
In actuality, several constitutional provisions are inconsistent with comprehension the people of the nation because the state legislature, as, as an instance, in the clause which supplies”whether [Senate] Vacancies happen by Resignation or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the legislature, which shall then fill such vacancies.” The people of the country do not take recesses. The Constitution may consider some sort in forms of state legislatures, but it does not consider a popular vote of those as a state legislature.
State Legislatures Alone or With Governors
Now, think about the next question. At times the clinic treats the state legislature as the 2 houses and in other times it treats it because the 2 houses along with presentment to the Senate. But how can that clinic be created consistent with the constitutional text?
Here, the response turns on the type of action that is delegated to the state legislature. If the action involves passing a legislation then the state legislature may utilize its normal process for passing of a law, which in nearly all countries involves the possibility of a gubernatorial veto. Thus, when the Constitution confers to the state legislature the power to govern”the Times, Places and Manner of holding Elections” for members of the House of Representatives,” it contemplates a election governed by laws enacted by the state legislature. The legislature can then use its ordinary process of passing such laws.
By comparison, if the action is merely a vote on a matter that does not demand the passing of a law but instead is only part of a process established by the Constitution, then the Constitution specifies the task entirely into the state legislature, without the Senate’s involvement. By way of instance, the first Constitution provided that the”Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years.” Since selecting a Senator does not involve passing of a law, the governor isn’t involved. A similar effect applies to the ratification of constitutional amendments, which does not involve passing of a lawbut is only part of a 2 part process established by the Constitution.
If this is the distinction which the Constitution brings, then how do we derive from the text? In other words, how do we derive two unique meanings from largely the same terminology, and how do we then decide which of these meanings apply in what scenarios? Let’s begin with deriving two unique meanings from largely the same language. Significantly, this speech is capable of meanings. At times the words state legislature are used to imply just the two houses–exactly what we can predict”the state legislature proper.” Sometimes, the words have been utilised to refer to the 2 houses of the state legislature along with presentment into the governor–as when someone describes a law as was commissioned by the state legislature, even though the governor had been included. Thus, the terminology is perfectly consistent with the two meanings.
Which of the two meanings was employed depends on the context. In the instance of the Constitution assigning a task that involves passing of a law, like regulating the times, places, and manner of holding congressional elections, the context suggests enactment by the standard state legislative process of passing a lawenforcement. It does not need to state that explicitly as it’s understood that such actions would normally be enacted by means of laws. By comparison, in the instance of the Constitution delegating a task, like selecting a Senator that does not involve passing a law, the expression”state legislature” has its simpler or proper meaning.
The toughest provision to translate is that the one governing the selection of the Electoral College. The provision says”Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors…” Historically, it appears that state legislatures have jumped in two ways below this provision. After the legislature selected the electors, as occurred in the first years of the Republic, the legislature proper would make the decision. After the legislature approved an election to select the electors, the legislature did so through the ordinarily lawmaking process with an opportunity for gubernatorial veto.
Interpreting the provision to authorize this clinic is still something of a struggle. An individual would have to understand the provision to require that the legislature act by law when legislation is necessary and throughout the legislature proper every time a law isn’t needed. That would require studying the provision to state”Each State shall appoint, in such Manner as the Legislature by law or on its own, as the conditions require, may direct…” Can this be a permissible Recruitment interpretation?
Admittedlythis interpretation is a small stretch, although it does have some significant aid in addition to fitting the clinic. To begin with, given that another constitutional provisions between the state legislature are properly translated as with the expression to mean either the legislature proper or the legislature with law, depending on the context, this interpretation gains support as having a meaning that is represented in these other constitutional provisions. It is a conventional canon of textual interpretation to examine constitutional provisions to accord with other provisions in the Constitution. Second, since this interpretation fits the clinic, this reading appears to be the way state legislatures historically has to have translated the provision.
In the long run, the question of how to translate the distinct constitutional provisions between state legislatures is a struggle both for our constitutional understanding and for originalism. If it were impossible to reconcile these various provisions in a consistent way, as appears to be assumed by some nonoriginalists, then we would have a much poorer understanding of our own Constitution. Plus it could give nonoriginalists more freedom to decide how to interpret provisions, permitting them to achieve results that they favor on political motives. But if I am correct, the first meaning makes sense, can be understood, and places strict limitations on just how the Constitution applies to state legislatures in certain extremely important circumstances.