The End of Democracy--or Just the End of Cogent Debate? (Or Both?)
"Moore v. Harper" and the Oddball Nature of Supreme Court Argument
TEMPORARILY UNLOCKED
I’m back on the weirdness of major Supreme Court decisions. While Moore v. Harper, the case now before the Court on the doctrine of “the independent state legislature” (ISL) in determining state election procedures, has been out of the news since it was argued earlier this month, it will be back in the news as soon as the Court hands down a ruling, and having poked around a bit in the intellectual history of the doctrine, I’ve developed my own, admittedly somewhat anti-intellectual doctrine, which is this:
A lot of seemingly sophisticated questions of constitutional law reveal far more about the fantasy lives and cynical machinations of those who argue them than they do about the nature and meaning of the Constitution they purport to explore.
I hope to see my doctrine broadly applied—not to the Court’s processes, which now seem beyond the reach of reason—but to public discussion of the Court’s cases and their meaning for our national polity. So let’s begin today!
The Court’s taking up Moore v. Harper has been described as a massive test case for American democracy. Maybe it is. Almost everything’s described that way these days, though, so it’s hard for me to tell what is and what isn’t. Possibly because I’m not a lawyer, what strikes me most about the plaintiffs’ invocation of ISL is the concatenation of weird ideas about the Constitution that it exposes.
You can easily look up the thinking on the doctrine, and I’ll link to some articles below. The gist, as currently presented to the Court, has to do with the operations of state governments when carrying out their constitutional duty to manage elections to federal office, within constitutionally defined limits, per Article 1, Clause 1:
The times, places and manner of holding elections for Senators and Representatives shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators.
Clearly the Constitution gives the various states’ legislatures a lot of power in managing elections for federal office.
But that’s not what’s being contested in Moore v. Harper. What the ISL doctrine claims is that the U.S. Constitution specifically and explicitly uses the word “legislature,” in the passage above, for the express purpose of empowering a state’s legislature to control the state’s federal-election process with no regard for what other branches of that state’s government have to say about the legality of the legislature’s actions under the state’s constitution. State legislatures are thus federally exempted, in this one situation, by explicit language in the federal Constitution, from check or balance by state courts’ interpretation of state constitutions, and thus exempted from following any election regulations imposed by state courts arising from such a ruling.
So if—as recently occurred in North Carolina—the state court rules that the legislature has violated the state constitution when drawing the map of the state’s federal congressional districts, by engaging in partisan gerrymandering, the U.S. Constitution nullifies that court ruling, freeing the legislature to proceed at will with the gerrymander: it’s a federal election, and in the passage above, as the doctrine has it, the founders used the term “the legislature” to make it illegal, uniformly throughout the country, for a state court to have any sway over the legislature in the matter of states’ federal-election processes, regardless of what the state constitution says.
It's no surprise, of course, that this case has been brought to the Supreme Court by the rightist majority in the North Carolina legislature, in alliance with rightists throughout the country, who are looking for tricks that might defeat the majority will in federal elections and think they might now have a sympathetic majority on the Court. But what I find funny, in its grim way, is that nobody actually holds this belief that North Carolina legislative leaders claim to hold, regarding what the founders meant by the Electoral Clause of the U.S. Constitution.
All of the furrowed-brow explication by experts, regarding why the doctrine is supposedly correct—or supposedly incorrect—sounds to me like a lot of overcomplication. If you want political minorities to take over the country, just say so and see how it goes. If you don’t, just say that. Just have the fight. Don’t waste our time with all this long-winded simulacrum of sophisticated jurisprudential thinking, pro and con.
To put it another way: ISL has now taken to the ultimate height of quirk the old conservative notion of “original intent”—the idea that we must stick to what the framers of the Constitution intended when they wrote the document. While “original intent” has always been a front for regressive politics, it has at times reflected aspects of real founding purposes. When Justice Alito, for example, says in Dobbs v. Jackson that a positive right to an early-term abortion isn’t deeply rooted in our heritage—he really means that women’s equality isn’t—he’s right. It’s not. Despite the fact that early-term abortions were rarely indictable in British common law until the late 19th century, the connection of a right to abortion with a woman's individual rights as an equal person under the law isn't part of our heritage, largely because the rights of women haven't been part of our heritage. Quite the contrary. It’s probably fair to say that giving a federal protection to women’s equality takes us a big step away from the U.S. founders’ intent in writing the Constitution.
The progressive answer has always been something like: Fine, but who says the founders necessarily had the best intentions?
We’ve been having that argument for a long time.
This case, though, parodies the originalist philosophy and thus exposes it as the manipulation it always was. To believe that the founders meant to use the term “the legislature” in “shall be prescribed in each state by the legislature thereof” to elevate the state legislatures, when managing the process of federal elections, above the other branches of the states’ governments, and indeed above the states’ own constitutions, is to imagine founders that nobody can even pretend to think we had. Everybody—literally everybody involved in this discussion—knows that to the founders, no legislature operates legitimately outside the constitution that creates it; no federal protection can ever legitimately be given to a state legislature that tries to do so.
This really has nothing to do with democracy, as the founders understood it. It has to do with the most conservative definitions of legitimacy in republican government.
As Justice Jackson put it, during oral argument in Moore:
If the state constitution tells us what the state legislature is, and what it can do and who gets on it and what the scope of legislative authority is, then when the state supreme court is reviewing the actions of an entity that calls itself the legislature, why isn't it just looking to the state constitution. . . ? . . . In other words, the authority comes from the state constitution, doesn't it?
The plaintiffs’ so-called answers to that and related questions put by Justice Jackson and others were so dodgy that you’d think a bunch of comedy hucksters out of a vaudeville act had gotten into the Court. It’s not just that nobody can possibly buy what these hucksters are selling (regardless of how certain justices may vote)—they can’t possibly buy it, so the real exasperation isn’t with the aggressive idiocy of the argument but with the Court’s hearing the case at all. If the judges are really so concerned with the public view of the Court, this would not be a good way to enhance that view.
I think this intellectually desperate use of the ISL argument in Moore seeks to take advantage of longstanding overall delusions about the framing of the Constitution, long participated in by all sides in our public discourse. The critical delusion here has it that the writers of the Constitution were thinking through to the nth degree every possible nuance in every bit of the language they used. When they were writing the Electoral Clause, if somebody had said, “Hold on, fellas, in the distant future, some jackass might use this to try to get around his state’s own rules about federal elections—we’d better shove in some verbiage like ‘subject to the state constitution,’” the others would have rolled their eyes. They had bigger fish to fry.
There was a time when original intent pretended to take into account the 18th-century context in which the meaning of constitutional terms was formed. Now it just plays gotcha with the founders. Who has time for this stuff?
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Further Reading
A transcript of the oral argument in Moore v. Harper.
A detailed scholarly article involving the long history of the ISL doctrine.
This one uses the ISL doctrine to argue against state legislatures’ delegating their authority over federal elections to commissions, etc.: “The Intratextual Independent ‘Legislature’ and the Elections Clause.”
Another BAD HISTORY post on oddball thinking by the Court.