Constitutional Text, Founding-Era History, and the Independent-State-Legislature Theory

Abstract

One question raised by proponents of the so-called independent-state-legislature theory concerns the extent to which state courts can apply state constitutional requirements to invalidate state laws that concern federal elections. According to one proposed application of the theory, state courts can never subject such laws to state-constitution-based judicial review. According to another application, federal courts can broadly, though not invariably, foreclose state courts from drawing on state constitutions to invalidate federal-election-related state legislation. This article evaluates whether either of these positions comports with the original meaning of the Constitution. Given the article’s focus on the originalist methodology, it directs attention only to the text of the Constitution and the context in which that text was drafted and evaluated in 1787 and 1788. This study of the relevant text and framing-era history—particularly as that history is disclosed by the Federalist Papers—casts a long shadow over the independent-state-legislature theory. At the least, it indicates that, as an originalist matter, there is no sound basis for broadly empowering federal courts to constrict state-court judicial review of federal-election-related laws under state constitutions, far less for precluding such judicial review altogether.

Keywords: constitutional law, originalism, independent-state-legislature theory, Moore v. Harper, Elections Clause

JEL Classification: K19