In Arizona State Legislature v. Arizona Independent Redistricting Commission, (1) the Supreme Court considered whether a commission, established by popular initiative, could draw congressional districts. Like other states, Arizona had stripped such power away from its legislature in order to overcome the partisan infighting and self-dealing that arises when politicians draw their own electoral districts. (2) Arizona's scheme, however, seemed to run counter to the plain text of Article I, Section 4 of the U.S. Constitution, which vests the regulation of congressional elections in "each State by the Legislature thereof." (3)
On behalf of a 5-4 majority, Justice Ruth Bader Ginsburg held that the Constitution's Elections Clause did not refer solely to an institution, distinct from the people, with the power to make laws-what common sense typically might consider a "Legislature." (4) Instead, the Court concluded that the Framers used "Legislature" to refer to any entity authorized to make laws. (5) According to the Court, the Framers would have understood "Legislature" to mean the "power that makes laws" following the first edition of Samuel Johnson's Dictionary of the English Language, published in 1755. (6) Because the people are the ultimate source of all power, they can establish a separate lawmaking body with plenary legislative authority, employ voter initiatives as a method of popular lawmaking, and delegate specialized legislative authority to a redistricting commission. As the Court put it, "the people may delegate their legislative authority over redistricting to an independent commission just as the representative body may choose to do so." (7) The Court believed that permitting the people to redistrict kept true to its Election Clause precedents. (8) In sum, the Court essentially held that the people of Arizona, when acting via initiative, are a "Legislature" under the Elections Clause.
Though Arizona State Legislature relied upon text, structure, history, and precedent in reaching this conclusion, we believe these methods yield a different result. We agree that a "Legislature" is "[t]he power that makes laws," (9) with "power" a synonym for an "entity." Thus, a "Legislature" is an entity that makes law. But not every entity that makes laws is a legislature. When a dictator makes laws unilaterally, he or she is not a legislature. Similarly, when the people make laws, be they statutes or constitutions, they are not a legislature. So although all legislatures are lawmakers, not all lawmakers are legislatures.
In a way, the Court read the word "Legislature" out of the Elections Clause. If that Clause had provided that the methods for holding federal elections "shall be prescribed by each State," rather than "shall be prescribed in each State by the Legislature thereof," the majority's reading would have been plausible. Given the Election Clause's actual wording, however, the Court should have read Article I, Section 4 to give effect not only to "State" but to "Legislature" as well. After all, a commonly accepted rule of interpretation strongly suggests that every word in the Constitution be given meaning. (10)
The reference to a particular state institution -"the Legislature"-seems quite meaningful when we consider other uses of "State" that omit reference to a particular institution. For instance, a clause in Article I, Section 8 reserves to the "state[s]" the power to appoint officers of state militias and to train the militia. (11) This leaves it to the states to determine which of their institutions ought to appoint officers and train militia members. In other instances, the Constitution bars certain acts by a state, which prohibits every entity of a state from taking the measure. By use of the words "No state shall," Article I, Section 10 and the Fourteenth Amendment (12) impose limits applicable to all entities that are properly seen as the state, including legislative, executive, and judicial institutions. As a matter of doctrine, the "No state shall" bars apply to the decisions and actions of a people of a state when they make the laws. (13)
Defenders of the result in Arizona State Legislature may suppose our reading of the Elections Clause rests on an unduly narrow view of the constitutional text to the exclusion of other legitimate sources of meaning. But reading "Legislature" to refer only to state assemblies, and not to the peoples of the states, more cleanly fits within the structure of Article I, Section 4. It also makes better sense of the use of the word "Legislature" in other parts of the Constitution. While there may be reasons not to apply "intratextualism" across the original Constitution and its amendments, those objections have far less force when interpreting multiple uses of the same word within the original Constitution itself. (14)
Finally, reading the Elections Clause as empowering only state assemblies comports best with the surrounding history of the Framing and Ratification of the Constitution. Interpreters, of course, may reject a resort to such history because it seems uncertain, unduly freezes constitutional meaning in place, or privileges a small elite in 1787 over today's electorate. We think, however, that original meaning has special relevance here. First, both the majority and dissent in Arizona State Legislature turn to history to confirm their readings of constitutional text and precedent. (15) No Justice denied the relevance of the materials from the Constitutional Convention, the public debates in the Federalist and Anti-Federalist papers, or the state ratifying conventions. Second, in separation of powers and federalism cases such history has heightened importance for the Court, possibly because case law is thin or because the constitutional provisions at stake do not seem to demand changing meanings to accommodate changing times. Third, the Court has not raised questions about the dead hand of the past in such cases perhaps because provisions such as the Elections Clause create the structure by which democracy operates. If the Constitution's electoral rules evolve independent of the original understanding, there will be no fixed, external source that sets the rules of the political game, thereby undermining one of a constitution's core purposes. (16)
This Article proceeds in three parts. Part I discusses the facts and background of Arizona State Legislature. Part II analyzes the text and structure of the Elections Clause in the context of the Constitution as a whole. Part III addresses the history of the drafting and ratification of the Constitution and raises several questions that arise because of the Court's mistaken reading of the Clause.
ARIZONA STATE LEGISLATURE
Arizona State Legislature addressed Arizona's efforts to remedy the problems of partisan gerrymandering. Article I, Section 2 of the Constitution apportions representation in the House using state population, with the Fourteenth Amendment purging Section 2's odious "3/5ths" Clause. Article I, Section 4 lodges power over federal elections with the state legislatures, subject to override by Congress:
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 chusing Senators. (17) The Elections Clause permits (but does not require) states to create House districts as a means of electing their Representatives. By statute, Congress has required states to draw such districts. (18) Typically, though not invariably, states redraw their districts in the wake of the federal census every 10 years.
Redistricting creates the prospect of partisan gerrymandering. If one political party dominates a state's lawmaking process, it can draw new districts to favor itself beyond its proportion of the statewide electorate. In particular, a state legislature can draw many districts where the majority party's advantage is firm, but slight, while concentrating the minority party's voters into fewer districts where they will prevail by large margins. In modern times, line drawers can use past voter data and computer programs to draw congressional (and state) districts that give the majority considerable electoral advantages. (19) Judge Robert Bork once served as a special master in the drawing of Connecticut congressional districts. He remarked that he could have drawn districts to yield almost any desired partisan outcome. The chair of the Connecticut Democratic party later congratulated Bork because the map favored the former's party. (20)
Politicians have drawn electoral districts for partisan advantage from the very beginnings of the Republic. The word "gerrymandering" itself comes from an attack on Elbridge Gerry, one of the delegates to the Constitutional Convention and later Vice President under James Madison, for state senate districts drawn in Massachusetts while he served as governor. (21) One of the districts, critics said, resembled a salamander because of its long, sinuous shape: hence gerrymandering. But Gerry did not invent the practice--colonial politicians can claim that honor. (22) During the Constitutional Convention, Madison argued that legislatures could manipulate districts for partisan purposes. State legislatures would "mould their [election] regulations as to favor the candidates they wished to succeed." (23) After the Constitution's ratification, Patrick Henry proved Madison's point by gerrymandering a district in a failed attempt to prevent Madison's election to the first Congress. (24)
The practice is alive and well today. In Vieth v. Jubelirer, (25) for example, the Supreme Court confronted a redistricting plan drawn by the General Assembly of Pennsylvania after the 2000 census. (26) Although Republicans constituted roughly fifty percent of the statewide electorate, they leveraged their majority...