College of Law dean and professor Vikram Amar spoke at length to The Guardian about the history of the independent state legislature theory and the implications if the Supreme Court endorses it in the upcoming term. An excerpt from the conversation follows:
You and your brother have studied this idea and you’ve written about how the history shows that this understanding of the language of the constitution of elections clause is bogus. Could you walk me through a little bit through that?
There are several originalist arguments that really devastate ISL.
Legislature is not a term that can be understood apart from the state constitutions that create the legislature. What the ISL folks want to say is that legislature means legislature, not court, not executive branch. They stop halfway short. Legislature means a body created to represent the people.
At the founding, state constitutions preceded the federal constitution. Every state constitution was based on the notion that the people have the power and they create the government, they create the state legislature, which is accountable to the people. And has only those powers and is subject to whatever limitations that the constitution sets up. The idea that the legislature can be freed of limitations, checks and balances, that were created in the very constitution that created the legislature, it’s just oxymoronic.
Read the full article at theguardian.com.