How a reactionary legal gambit threatens the American political tradition

Americans are remarkably inconsistent toward our constitutions. On the one hand, we hallow the federal constitution. We see it as the country’s proud inheritance to be jealousy safeguarded. To suggest minor changes to it is suspect; to suggest fundamental ones is a kind of sacrilege. At the same time, we treat our state constitutions as ordinary instruments of government. We change or even throw them out and replace them entirely whenever necessity or even convenience demand. Though both kinds of constitution discharge the same basic tasks — providing charters of rights and outlining the rules and mechanics of how the government is supposed to conduct its business — Americans do not afford state constitutions the same level of respect as the federal one. This inconsistency is now (at risk of) being exploited to blow up the checks and balances enshrined in America’s state constitutions via the anti-democratic right’s latest legal innovation, Independent State Legislature (ISL) theory. 

ISL theory is now before the Supreme Court in Moore v. Harper. In this case, the North Carolina Legislature is seeking to block state courts from reviewing gerrymandered congressional district maps it came up with based on the theory that the federal constitution absolutely prohibits such review. If the court affirms the Legislature’s view, it would mean that whatever procedural rules or checks state constitutions create, such as judicial review or the governor’s veto, are inapplicable to state legislative acts intended to govern federal elections. It would mean there’s no role for state courts to ensure that state legislatures obey the law, no role for governors to slow down or block ill-considered legislation, nor any ability for the people to make election policy themselves through mechanisms of direct democracy like the initiative. In short, it would mean state constitutions — and the basic rules they enshrine for how state governments are supposed to work — literally do not matter in this area.

Yawning at state constitutions

One key factor enabling ISL theory is that Americans do not revere their state constitutions like they do the federal one. In one of the only empirical examinations of this question, Adam Brown and Jeremy Pope found that informing citizens about their state constitution can change their evaluations of it but doing the same about the federal constitution does not. Brown and Pope conclude that this is because Americans indeed view the federal constitution with a veneration that does not extend to their state constitutions, which are instead viewed as “practical governing documents.” Indeed, one recent survey found that more than half of Americans did not even know if their state had a constitution. Since both state and federal constitutions are in fact practical governing documents, this attitude is paradoxical. In particular, the inconsistency means that ISL theory’s manhandling of state constitutional tradition fails to raise the immediate ire it would if it were tried at the federal level.

Why do Americans take this contradictory attitude toward their constitutions? No doubt many factors play a role, but two seem likely to be of special importance. The first is the nationalization of American politics, both in the long term and more recently. Over the long arc of American history, power and authority have tended to migrate from the states to the national government, reducing the significance of states in actual governance. State politics, moreover, have increasingly come to mirror national politics with the rise of polarization and the ideological sorting of the parties. Both these dimensions of nationalization have served to degrade the seeming relevance of state constitutions. 

A second likely reason for Americans’ differing attitudes toward their constitutions is the long tradition of state constitutional innovation. Unlike the federal constitution, Americans rewrite and amend their state constitutions freely. While there has not been an ordinary amendment to the federal constitution since 1971, between 2006 and 2020 alone there were more than a thousand proposed amendments to state constitutions, of which more than seven hundred were approved. As Emily Zackin has argued, Americans have written robust protections of positive rights into their state constitutions, among other changes, bringing them more closely into line with the world’s other national constitutions in terms of their length and content. This tradition of state constitutional innovation likely degrades reverence for state constitutions because in amending or overhauling them we take them down off their pedestals and into our own hands — and one does not lay hands on the sacred. 

While a muted reverence for state constitutions likely aids democratic self-government, denigrating the relevance of state constitutions is almost certainly a mistake. State governments remain important centers for policymaking—we need look no further than state abortion bans in the wake of Dobbs for proof of that. Moreover, as I discuss below, state governments can also serve as important sources of national power through their shared authority over elections, particularly in the drawing of congressional district maps. 

More fundamentally, state constitutions help compose the indivisible whole that is the American constitutional tradition. As a federal system, the Constitution writ large would be incomplete without them. We see this shared tradition in the broad similarities across American constitutions. Virtually all feature bicameral legislatures and all have independently elected chief executives with some ability to check their legislatures as well as independent judiciaries with the power of judicial review. These fundamental similarities reflect a common institutional logic of checks and balances that was far from universal in 1787 when the federal constitution was framed but was adopted by the states over the following decades through piecemeal or wholesale reform of their constitutions. In many states, this required weakening and restructuring the legislature — as by taking away its power to appoint state officials up to and including the governor and introducing in some states an upper house — and strengthening governors and state courts. This process of institutional convergence constitutes the development of a common American constitutional tradition based, among other things, on the principle of checks and balances. And it is precisely this common constitutional tradition of checks and balances that is endangered by ISL theory.  

Upending the American political tradition

ISL theory takes a single term from the federal constitution — that “the Time, Places, and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof…” (Article I, Section 4) — and spins it out into an entire political and constitutional theory. This theory says that the authority to control federal elections in the states resides specifically and entirely in the hands of state legislatures. Though Congress and the federal courts possess the power to override them, any and all checks or limits on state legislatures by the other branches of state government are unconstitutional. When it comes to regulating federal elections, ISL theory says state legislatures are second only to God, at least at the state level. 

This conclusion has the ridiculous implication that state legislatures are above the constitutions that create them. In the American tradition — and indeed, in virtually all constitutional governments around the world — legislatures are given form and authority by their constitutions. A constitution establishes the legislature along with all the rules, divisions, and limits on its authority expounded in the constitutional text such as executive vetoes, judicial review, and in some states, direct legislation via the initiative. The authority of state legislatures is not, therefore, freestanding but rather depends on a constitution to create it. The powers of legislatures are granted by the constitution simultaneously with limits and checks on that power; they are co-original. It makes no sense to say that legislatures have authority prior to the constitutional act that creates and binds them, yet that is what ISL theory contends. 

More fundamentally, this line of reasoning contradicts the entire American political tradition and centuries of practice. Its absurdity would be readily apparent if the trick were attempted at the federal level. If you were to say to Americans, “Majorities in Congress should be able to make any law they want and neither the president nor the Supreme Court nor the Constitution can limit them in any way,” they would likely respond with slack-jawed horror, at least until the phrase “TYRANNY OF THE MAJORITY” shot out of them. 

At the most basic level, ISL theory negates one of the core elements of the American political tradition: that power must be balanced by power. Institutions and individuals with power over the lives of their fellow citizens must face countervailing institutions with the ability to block or slow them down. This lesson has resounded in American, and indeed world, history. It is taught to our schoolchildren from the youngest ages and helped guide the construction of democratic governments in the states and across the globe. Arbitrary, unchecked power is entirely alien to the American constitutional tradition, yet ISL theory attempts to erect just such a power in state governments. It seeks to create an exception — a loophole — to the system of checks and balances created by state constitutions. In the ordinary run of events, whenever the state legislature exercises its power, it must abide by the limits and controls embedded in its constitution — except when making the laws that govern federal elections. There, it is to be obeyed without question or appeal. According to ISL theory, its power there is supreme and sovereign. In short, if ISL theory were correct, it would mean Americans have been misinterpreting the Constitution and doing politics incorrectly since 1789. 

Constitutional theory and political reality

Some will say that all of this overstates the danger of ISL theory because, although it is true that it abolishes checks at the state level, it is not the case that state legislatures face no checks at all. Congress retains its constitutional authority to override state laws regulating federal elections and the federal courts likewise retain judicial review. Yet here we must forsake abstract theory and open our eyes to political reality. Congress is currently too institutionally feeble to exercise its theoretical power over federal elections. Its power to regulate elections is a dead letter in part because the contemporary filibuster creates a supermajority requirement for all ordinary legislation in the Senate, stalling recent efforts to restore the bulwarks of the Voting Rights Act and to expand protections for voting rights to address new efforts at targeted vote suppression. State legislatures unencumbered by supermajoritarian hurdles like the filibuster have energetically stepped into the vacuum created by Congress’ dysfunction to pass all manner of vote suppression policies, sometimes in open contempt of voters’ intentions, as in the case of Florida’s ballot measure restoring voting rights to most people convicted of felonies, now gutted by Gov. Ron DeSantis and the Legislature.

ISL theory fundamentally alters the balance of power in American government by neutralizing institutions dedicated to the rule of law (state courts) and those elected by non-gerrymandered statewide electorates (governors). These are institutions that an increasingly unpopular and extreme Republican Party has struggled to dominate in closely divided states like Wisconsin, North Carolina, and Pennsylvania. But ISL theory makes this difficulty irrelevant. It enables Republicans in these states to leverage their secure, gerrymandered control over their state legislatures to further their power at the federal level by allowing them to pass all manner of gerrymandered congressional maps and voter restrictions designed to suppress voting by, and representation of, Democratic-leaning groups. Perhaps even more importantly, it grants to the state legislatures unilateral power to adjudicate claims of electoral irregularities. By sidelining all other state authorities, ISL theory grants to state legislatures the ultimate judgment over any election’s integrity. Because of this, legislators’ fever dreams of imagined voter fraud can be sufficient to reject the judgment of election officials that an election was freely and fairly conducted. So long as the legislature takes action pursuant to its power to regulate federal elections, ISL theory tells us that no other state institution matters. 

One might argue that federal courts could intervene and stop a runaway state legislature that was trying to steal an election by casting unfounded doubt on its results. Since an enfeebled Congress is unable to legislate, the only check on state legislatures ISL theory leaves us with are federal courts. Yet one need only recall that avenues of appeal in federal court all terminate at the U.S. Supreme Court, which is currently dominated by an activist supermajority of reactionary judges who appear committed to remaking the country through maximalist interpretations and exercises of their own power. It is a fool’s hope to rely upon the present court to resist rubberstamping Republican electoral theft, at least if it is conducted with more procedural subtlety than the naked power grab of Texas v. Pennsylvania. Indeed, if the court endorses ISL theory in Moore, it would throw the courthouse door wide open to cases like Texas, which was explicitly predicated on it. 

It’s an amazing coincidence that ISL theory — like other recent conservative legal innovations such as the sovereign equality of the states invoked in Shelby County v. Holder or the non-justiciability of partisan gerrymandering established in Rucho v. Common Cause — reveals that supreme arbitrary power resides in organs of government dominated by the Republican Party and its appointees. It just so happens that a correct understanding of the U.S. Constitution places power specifically in the hands of Republicans. We should of course not be surprised by this. This is often how legal doctrine shaping power is developed and deployed, at least by political movements who understand it. Yet we must not be deceived by formalistic legalisms that cover for anti-constitutional power grabs. The task before Americans today is to have the courage to use our eyes and for those of us so inclined to resist the urge to turn to more formal and abstract levels of analysis. The question cannot be whether “Legislature” in the Elections Clause means simply and literally the state legislature, as much as reactionary legal scholars would like to frame it that way. It is instead about the American tradition of checks and balances and, even more fundamentally, about whether political power is going to be the exclusive property of only one political party in the United States of America.