In a July 17th op-ed published in the NY Daily News, Illinois law dean and professor Vikram Amar wrote about the most consequential case the Supreme Court will hear in its 2022 term, in which it appears some of the justices may be ready to embrace the independent state legislature theory (ISL), a once-fringe concept. An excerpt follows:
This Supreme Court majority purports to care about history. In this case, early practice right before and right after the Constitution was adopted convincingly refutes ISL. All told, in the 1780s and early 1790s, more than half of the 11 states that ratified the Constitution in 1787–88 had state constitutions that expressly regulated state legislatures in the context of federal elections. All these states acted in ways precisely contrary to ISL theory. By contrast, ISL theorists have identified no strong and specific evidence from any of the remaining states indicating that constitution-makers affirmatively embraced ISL ideas.
If the self-styled historians on the court ignore this history after rooting their abortion and gun-rights rulings in their reading of history on those issues, they will be showing how dangerously selective their interpretative framework truly is.
Read the full op-ed at nydailynews.com.
Note: The views expressed are those of the author and do not necessarily reflect the views of the University of Illinois College of Law.