January 29, 2023

DAMN GOOD: Justice Jackson just asked one ingenious question that should save democracy

DAMN GOOD: Justice Jackson just asked one ingenious question that should save democracy

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In a pivotal case that could have severe repercussions for the future of our republic, Biden appointee Ketanji Brown Jackson made a point that no one seemed capable of rebutting – not the lawyers for the petitioners nor any of the conservative justices she serves beside.

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Arguments in the case – Moore v Harper – began Wednesday.

While the initial issue centers around heavily gerrymandered maps in North Carolina, the decision could go far beyond that, as the argument advanced by attorney David H. Thompson, representing the Republican legislature, promotes what’s known as the “independent state legislature doctrine,” or ISLD.

This theory – widely criticized by both historians and legal scholars – posits that only state legislatures should be permitted to make decisions about election matters, basing this idea in an Originalist interpretation of the Constitution.

The language in question centers around Article I, Section 4, which states that “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” Later, in Article II, Section 1, the Constitution states that legislatures should act similarly in appointing electors.

But, before we get to how KBJ tore this argument apart (and it is coming, dear reader), there are some important things to note here regarding exactly how flawed this argument is.

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Let’s put aside for now the fact that the Founders were not perfect and that the notion by Originalists that we should just go by language in the Constitution that can often be ambiguous to begin with.

And that the document in question is so old that it capitalizes words like “Times” and “Places.”

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There are other reasons to reject this nonsensical argument, even if you are foolish enough to accept the idea of Originalism.

As Ian Millhiser of Vox pointed out, in 1787 when the Constitution was crafted, the term “legislature” meant any group of people involved in the making, passing, or interpreting of laws.

In other words, referring to state legislatures was considered the equivalent of referring to state governments in general.

And even if you don’t accept this relatively logical interpretation – borne out by dictionaries at the time – you still don’t have to accept that the word choice of “legislature” means that the Founders believed no other government officials should be involved in the process.

Would the Founders have really said that governors could not veto election laws and that courts could not rule on them?

If they had truly wanted that, wouldn’t they have made a point of saying so more explicitly, rather than leaving us to decode it like some linguistically deranged drug-addled Sherlock Holmes?

Unbelievably enough, as Pema Levy pointed out for Mother Jones, much of the argument advanced in favor of the ISLD relies on a fraudulent supporting document that has been thoroughly debunked.

It was first produced in 1818 after John Quincy Adams requested from Founder Charles Pinckney the plan he had written up during the negotiations of the Constitution that related to the relevant section.

Pinckney, either truly unsure which copy was the correct one or deliberately misleading Adams, sent one that had a 1797 watermark – ten years AFTER the Constitution was written.

It used the term “each state” rather than “legislature.”

Conservatives who want to believe in ISLD point to his as a “smoking gun” – indicating that the Founders purposely changed the language, and for a reason.

But, as Levy notes, James Madison – the “Father of the Constitution” – wrote that Pinckney’s version was not correct.

And there’s no indication whatsoever that any sort of intentional change was made to vest the power of regulating elections solely with state legislatures without any oversight.

In fact, such a thing would likely have been anathema to the Founders, since they were intent on creating a government with checks and balances.

Finally, this brings us to Ketanji Brown Jackson, sage judge and liberal hero.

In her questioning of the ISLD concept, Jackson asked something that was as poignant as it was devastating – at least if you adhere to logic, which we cannot say Republicans always do. As the Charlotte Observer reported, she said:

“I guess what I don’t understand is how you can cut the state constitution out of the equation when it is giving the state legislature the authority to exercise legislative power.”

Mic drop.

Exactly! Joe Patrice of Above the Law summed up KBJ’s argument thus:

“If state constitutions create state legislatures, then how can state legislatures violate state constitutions. It ceases to be a constitutionally ordained legislature at that point!”

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The Founders would have to have been awful big fools if they thought state constitutions granting oversight to courts and establishing a system of checks and balances within the state could simply be ignored and invalidated.

It’s obvious that what was happening instead is that they were trying to give some responsibilities and leeway to the states in how their national representatives were chosen – not attempting to divest two-thirds of each state governmental branch of power in favor of another, which would also run counter to the idea of the Tenth Amendment.

With one question KBJ showed that such an argument in favor of ISLD just does not add up.

Now if only she can stop the conservatives from continuing to ignore facts, over a hundred years of precedent, and anything else that doesn’t fit their ludicrous legal ideas and keep the court from making a horrible mistake.

Clarence Thomas probably doesn’t like Ross very much. But you can! On Twitter! @RossRosenfeld

Ross Rosenfeld

is a news analysis and opinion writer whose work has also appeared in the New York Daily News and Newsweek. He lives in New York.

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