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What Difference Does “Legislature” Make?

Updated: Apr 10, 2023

The Supreme Court has heard arguments in the case of Moore v. Harper which challenges the right of the North Carolina Supreme Court to invalidate that state’s congressional electoral map. The state court found that the map was gerrymandered in contravention of the state’s constitution. The argument for disempowering the state supreme court so the legislature can ignore its own constitution rests on one word in the federal Constitution – “legislature.”


Article I, section 4 of the U.S. Constitution begins: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof;” The use of the word “legislature” has animated the “independent state legislature” theory that a state’s legislature is independent of its own supreme court when drawing electoral maps. There is no judicial check to ensure that the legislature obeys the state’s constitution.


But reliance on a single word in the Constitution is an unreliable guide to its meaning. Consider the word “He” in Article II, section 1: “The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four years….” “He” and “his” were originally understood to refer only to men. Women couldn’t even vote. Sticklers for single words in the Constitution must conclude that only males can be President of the United States.


The Twelfth Amendment to the Constitution, ratified in 1804, specifies that “no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.” By the logic of the single-word fetish, Kamala Harris isn’t vice-president.


Women gaining the vote did not change this situation, because many citizens of the United States who can vote are ineligible to be president; they are immigrants. The Equal Rights Amendment would have changed this situation, but it didn’t pass.


Another case concerns the word “property.” The Fifth Amendment, ratified in 1791, says that in no case “shall private property be taken for public use without just compensation.” Where land was concerned, the common law rule was that one’s property extended from the ground to the periphery of the universe, the ad coelum rule. In the early republic, common law was the law of the land unless modified or overridden by statute.


In United States v. Causby (1946) a chicken farmer claimed that his land had been “taken for public use without compensation” because low-flying aircraft from a nearby airfield during World War II frightened his chickens and ruined his business. He claimed that his land extended to the periphery of the universe, so the planes were trespassing on his property.


The government responded that the Air Commerce Act (1926), as modified by the Civil Aeronautics Act (1938), superseded the common law rule, giving the United States “complete and exclusive national sovereignty in the air space” over the country. However, this means only that Causby’s property had been “taken for public use without just compensation” by statute instead by administrative action. Either way, Causby’s loss violates the Takings Clause.


This is another unacceptable result supported by concentration on a single word as it was originally understood by those who ratified the Amendment. Commercial air travel would be impossible if flying over the country constituted myriad cases of trespass for which compensation was due by either the government or by private parties.


According Article I, section 1 of the U.S. Constitution, “Congress” refers to the “Senate and House of Representatives.” Article I, Section 8 then allocates to Congress “the Power to lay and collect Taxes….” The president isn’t mentioned. Does this mean that the president can’t veto legislation, requiring in such case two-thirds of each house to override if the tax is to be legally imposed? Of course not. Section 7 describes the way Congress can override a presidential veto. The separation of powers is inherent in the Constitution, but the single-word fetish would contradict it.


Concentration on the word “legislature” in Moore v. Harper would similarly upend what is inherent and crucial in our constitutional framework – checks and balances. State legislatures would be able to ignore the constitutions of their own states when drawing electoral maps, making this important task immune to the rule of law. But the rule of law is as inherent in the Constitution as the separation of powers. The Constitution was designed to preclude the kinds of extra-legal royal commands that had been imposed on colonists.


In sum, interpreting the Constitution based on single words is inappropriate when it contradicts key constitutional values or universally approved practices.

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