Amicus Curiae Brief — Timothy K. Moore, in His Official Capacity as Speaker of the North Carolina House of Representatives, et al., Petitioners v. Rebecca Harper, et al.

Supreme Court briefOct 24, 2022

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No. 21-1271

IN THE

Supreme Court of the United States

TIMOTHY K. MOORE, in his official capacity as Speaker of

the North Carolina House of Representatives, ET AL.,

Petitioners,

REBECCA HARPER, ET AL.,

Respondents.

TIMOTHY K. MOORE, in his official capacity as Speaker of

the North Carolina House of Representatives, ET AL.,

Petitioners,

NORTH CAROLINA LEAGUE OF

CONSERVATION VOTERS, INC., ET AL.,

Respondents.

ON WRIT OF CERTIORARI TO THE

NORTH CAROLINA SUPREME COURT

BRIEF OF AMICI CURIAE PROFESSORS

AKHIL REED AMAR, VIKRAM DAVID AMAR AND

STEVEN GOW CALABRESI

IN SUPPORT OF RESPONDENTS

Vikram David Amar*

University of Illinois College of Law**

504 East Pennsylvania Avenue

Champaign, IL 61820

amar@illinois.edu

(217) 244-8446

Counsel for Amici Curiae

*Counsel of Record

**University affiliation provided for

identification purposes only

Dated: October 24, 2022

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...................................... ii

INTEREST OFAMICI CURIAE ................................1

SUMMARY OF ARGUMENT.....................................1

ARGUMENT ...............................................................5

What Core Constitutional

Question Does This Case Raise? ...........5

II.

How Does ISL Fare Under an

Originalist Lens? ...................................7

III.

Don’t ISL Critics Essentially

Ignore the Word “Legislature” in

Article I? ...............................................17

IV.

Is Empowering State Judges in

Congressional Districting

Particularly Problematic? ...................22

Weren’t Legislatures Chosen

Because They Are the Most

Representative Bodies? .......................25

VI.

What About Other Provisions of

the Constitution? .................................25

VII.

What is the Proper Role for

Federal Courts Here? ..........................26

VIII. What About this Court’s Prior

Caselaw? .............................................28

IX.

What About ISL for Article II? ............30

Must This Court Address ISL in

This Case? ............................................31

CONCLUSION ..........................................................32

TABLE OF AUTHORITIES

CASES:

Ariz. State Legislature v. Ariz. Indep. Redistricting

Comm’n, 576 U.S. 787 (2015)

......................................... 1-2, 4, 6, 15, 18, 22-25, 29

Bush v. Gore,

531 U.S. 98 (2000) ................................................. 28

Bush v. Palm Beach County Canvassing Board,

531 U.S. 70 (2000) ................................................. 29

Calder v. Bull,

3 U.S. (3 Dall.) 368 (1798) .................................... 23

Dobbs v. Jackson Whole Women’s Health Org.,

142 S. Ct. 2228 (2022) ............................................. 1

Erie R.R. Co. v. Tompkins,

304 U.S. 64 (1938) ........................................... 24, 26

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803).......................... 8, 9-10

McPherson v. Blacker,

146 U.S. 1 (1892) ................................................... 28

N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen,

142 S. Ct. 2111 (2022) ....................................... 1, 16

New York v. United States,

505 U.S. 144 (1992) ............................................... 32

Ohio ex rel Davis v. Hildebrant,

241 U.S. 565 (1916) ................................... 18, 22, 29

Rucho v. Common Cause,

139 S.Ct. 2484 (2019) ...................... 1, 22, 23, 25, 29

Smiley v. Holm,

285 U.S. 355 (1932) ........... 2, 6, 15, 18, 21-22, 29-30

U.S. Term Limits, Inc. v. Thornton,

514 U.S. 779 (1995) ............................................... 17

CONSTITUTIONAL PROVISIONS:

DEL. CONST. of 1792, art. I, § 3 ................................ 13

DEL. CONST. of 1792, art. VIII, § 2 ........................... 12

GA. CONST. of 1789, art. IV, § 2 ............................... 12

KY. CONST. of 1792, art. XII, § 5 .............................. 13

KY. CONST. of 1792, art. III, § 2 ............................... 12

MASS. CONST. of 1780, ch. IV ............................. 11, 13

N.H. CONST. of 1784, pt. II ....................................... 11

N.H. CONST. of 1792, pt. I, art. XI ........................... 13

N.Y. CONST. of 1777, art. XXX ................................. 13

PA. CONST. of 1790, art. IX, § v ................................ 13

PA. CONST. of 1790, art. III, § 2 ............................... 12

S.C. CONST. of 1778, art. XXII ................................. 11

TENN. CONST. of 1796, art. III, 3………………………16

TENN. CONST. of 1796, art. XI, § 5………………….....16

U.S. CONST. art. II, § 2, cl. 2 .................................... 18

U.S. CONST. amend. XVII, § 2 .................................. 26

VT. CONST. of 1793, ch. I, art. 8................................ 13

OTHER AUTHORITIES:

3 THE RECORDS OF THE FEDERAL CONVENTION

OF 1787 (Max Farrand ed. 1911) ............................ 3

AKHIL REED AMAR, AMERICA’S CONSTITUTION:

A BIOGRAPHY (2005) .................................... 9, 23, 32

AKHIL REED AMAR, THE WORDS THAT MADE

US: AMERICA’S CONSTITUTIONAL

CONVERSATION, 1760-1840 (2021)........................... 8

iii

Vikram David Amar, Are Statutes

Constraining Gubernatorial Power to Make

Temporary Appointments to the United

States Senate Constitutional Under the

Seventeenth Amendment?, 35 HASTINGS

CONST. L.Q. 727 (2008) ........................................ 26

Vikram David Amar, (Yet) Another Reason

ISL Theory is Wrong About the Meaning of

Term State “Legislature”: The Constitution’s

References to the Federal Counterpart

— “Congress,” JUSTIA.COM (June 30, 2022) .......... 18

Vikram David Amar, Response to

Baude/McConnell on ISL, JUSTIA.COM (Oct.

17, 2022) ................................................................ 24

Vikram David Amar & Akhil Reed Amar,

Eradicating Bush-League Arguments Root

and Branch: The Article II IndependentState-Legislature Notion and Related

Rubbish, 2021 SUP. CT. REV. 1 (2022)

.......................................... 4, 7, 14, 22, 25, 27-28, 31

Steven G. Calabresi, The Vesting Clauses as

Power Grants, 88 NW. U. L. REV. 1377

(1994) ..................................................................... 19

Steven G. Calabresi, “A Government of

Limited and Enumerated Powers”: In

Defense of United States v. Lopez, 94 MICH.

L. REV. 752 (1995) ................................................. 26

Steven G. Calabresi & Joan L. Larsen, One

Person, One Office: Separation of Powers or

Separation of Personnel?, 79 CORNELL L.

REV. 1045 (1994) ................................................... 23

Steven G. Calabresi & Saikrishna B. Prakash,

The President’s Power to Execute the Laws,

104 YALE L.J. 541 (1994) ...................................... 19

Steven G. Calabresi & Kevin H. Rhodes, The

Structural Constitution: Unitary Executive,

Plural Judiciary, 105 HARV. L. REV. 1153

(1992) ..................................................................... 19

STEVEN G. CALABRESI & CHRISTOPHER S. YOO,

THE UNITARY EXECUTIVE: PRESIDENTIAL

POWER FROM WASHINGTON TO BUSH (2012).......... 19

GORDON S. WOOD, THE CREATION OF THE

AMERICAN REPUBLIC, 1776–1787 (1969) ................. 8

INTEREST OFAMICI CURIAE 1

Akhil Reed Amar, Vikram David Amar, and

Steven Gow Calabresi are constitutional scholars and

historians who seek to aid this Court in its efforts to

practice principled constitutional decision-making

and faithful originalism.

SUMMARY OF ARGUMENT

In recent landmark rulings, this Court has

properly recommitted itself to originalism, promising

to interpret the Constitution as Americans publicly

understood the document when adopting it, with

special

attention

governmental

actions

immediately preceding and immediately glossing the

enacted text. Dobbs v. Jackson Whole Women’s

Health Org., 142 S. Ct. 2228 (2022); N.Y. State Rifle

& Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022).

Principled

originalism

compels

rejection

Petitioners’ claims. The more one knows about the

Constitution’s text, history, and deep structure, the

clearer it is that Petitioners must lose. Petitioners

also defy a long and consistent line of this Court’s

decisive precedents, a line that itself exemplifies

principled originalism.2

No party or party’s counsel authored or financially

supported any of this brief. The parties have consented to its

filing.

Ariz. State Legislature v. Ariz. Indep. Redistricting

Comm’n (“AIRC”), 576 U.S. 787, 807, 817-18 (2015) (holding that

the Constitution’s use of “legislature,” understood in historical

context, does not always confer power on a particular named

body but often, as in Article I, allows states to make use of their

own distinctive and dynamic lawmaking systems created by

their own constitutions); Rucho v. Common Cause, 139 S.Ct.

2484, 2507-08 (2019) (explicitly blessing the application of

substantive state constitutional limits enforced by state courts

Petitioners flout core tenets of the American

Founding. State constitutions—the pride and joy of

Revolutionary Americans—outranked mere state

statutes, just as the federal Constitution outranked

mere federal statutes. State supreme courts operated

as specially privileged interpreters of state laws and

state constitutions, much as this Court operated as a

specially privileged interpreter of federal laws and

the federal Constitution. The federal Constitution

confirmed the wide freedom of each state’s people, via

its state constitution, to restructure its future

governmental institutions, provided each state

remained republican in form and substance.

If the federal Constitution had intended to

severely limit a state’s future ability to reallocate

power between its own governmental branches, or

between its own voters and elected officials—or if the

federal Constitution meant to give a faraway federal

Court lacking expertise in state law carte blanche

over ordinary state-law issues—then we would expect

to see abundant evidence for these pulverizations of

the bedrock principles of 1776. Anti-Federalists would

have sounded alarms; Federalists would have had lots

in federal districting, as well as states’ creation of unelected

independent commissions for federal districting like the one

upheld in AIRC). Petitioners slight this key passage of Rucho,

which expressly endorses a major role for state courts in

congressional elections. Petitioners also all but concede (at

40n.9) that they can prevail only by overruling AIRC. This

overruling would have astonishing reverberations—logically

calling into question whether veto-pen-wielding governors are,

strictly speaking, part of the “legislature,” as they have been

understood to be for centuries, almost everywhere, for federalelection purposes. See Smiley v. Holm, 285 U.S. 355 (1932)

(Hughes, C.J.); infra note 7, pp. 20-22.

of explaining to do. Petitioners offer nothing close to

the massive evidence required.

And there are mountains of evidence on the

other side, namely, early state constitutions and

legislative practices. Every single state that adopted

a constitution in the critical time period (late 1777

through 1793) or that otherwise squarely addressed

the issue—nine states in all—openly contradicted

Petitioners’ vision. No state embraced this vision.

Elephants do not hide in mouse-holes, yet

Petitioners would have us believe that T-Rexes lurk

in insect-holes. In particular, Petitioners grossly

exaggerate the significance of one or two postratification politicos, whose ideas failed to carry the

day anywhere.

And then there is Petitioners’ invocation of the

alleged Pinckney Plan. The language Petitioners have

trumpeted to this Court is phony. This language was

no part of the real Pinckney Plan actually presented

to the Philadelphia Convention. Beginning around

1819, a bogus document masqueraded as the

Pinckney Plan. This bogus document was

immediately questioned by James Madison and

definitively discredited more than a century ago—

facts well known to expert historians. The true story

appears in the short Appendix to Farrand’s Records

that Petitioners cite but apparently never read to the

end. Petitioners actually lead their brief with this

fake and call this sham precursor to Article I, Section

4 “crucial[]” to their argument.3

See 3 THE RECORDS OF THE FEDERAL CONVENTION OF

1787 app. D, at 595, 601-04 (Max Farrand ed. 1911)

(summarizing the backstory of the fraudulent Pinckney Plan as

distinct from the true Pinckney Plan). Compare id. at 597 (phony

This error is important both for its own sake

and for a deeper point: Petitioners are not expert

historians—alas, not even competent ones. We do not

question their integrity but do challenge their

reliability and credibility. Every Justice should

exercise extreme caution before accepting any of

Petitioners’ assertions. Their brief is littered with

major misstatements and half-truths. (We lack space

to address them all, but highlight the biggest ones.)4

We ourselves do not claim infallibility, here or

elsewhere. Errors doubtless infect our own work. But

we do claim genuine expertise as legal scholars and

historians.5

We three speak today as blunt but true amici

curiae, and we intend to file future blunt briefs in

other cases. Proper originalism is serious business,

and the Court needs to hear from serious scholars—

especially when asked by adventurous litigants to

embrace new doctrines with vast and dangerous

implications for our republic. Today and in other

language repeatedly emphasized by Petitioners, at 2, 11, 15-16)

with 605 (most reliable reconstruction of the Pinckney Plan

containing no such language). For more on the significance of

this gaffe, see infra note 13.

4 The Court should also discount the claims of Professor

Michael Morley for reasons explained in Vikram David Amar &

Akhil Reed Amar, Eradicating Bush-League Arguments Root

and Branch: The Article II Independent-State-Legislature

Notion and Related Rubbish, 2021 SUP. CT. REV. 1, 4142&nn.102-108 (2022).

One important role for expert amici is to forcefully

counter misstatements by neophyte academics or unreliable

litigants. Cf. AIRC, 576 U.S. at 835-37 (Roberts, C.J., dissenting)

(mistakenly invoking the fraudulent Pinckney Plan, likely in

reliance on an erroneous 2005 student Note).

briefs we will advance nonpartisan positions that we

have taken as academics long before any partisan

implications could have been known. We are

dismayed that many legal scholars and academic

historians today view their scholarship as extensions

of their personal politics. By contrast, we aim to help

the Court get the law and the facts right, regardless

of whose political ox is gored. In the spirit of candor,

we offer below direct answers to the big questions

raised by the case. We also steer the Court to reliable

primary sources and secondary scholarship providing

more detail than we can offer in this brief . . . brief.

ARGUMENT

What Core Constitutional Question Does This

Case Raise?

In a nutshell: ISL theory.

Less cryptically: Petitioners’ challenge is

premised on what has come to be known as the

“Independent State Legislature (ISL) Theory,” which

claims that under Article I (and also under Article II,

governing presidential elections)6 each state’s

ordinary elected legislature enjoys a federal

entitlement to have its enactments concerning

federal-election

logistics

take

full

effect

notwithstanding anything in the state constitution

that creates and bounds the legislature. ISL thus

denies the ability of states, through their

constitutions, to decide what the state legislature

shall consist of, what its procedures shall be, and

what substantive limits it must respect. ISLers also

say that, even if some state constitutional limits do

6 ISL is especially implausible in the Article II context.

See Question 9, infra.

legitimately constrain a given state’s ordinary elected

legislature, federal rather than state courts should

primarily interpret and apply those limits.7

Petitioners (at 24) waffle, suggesting that although

state courts cannot generally be involved in congressionalelection

regulation,

state

constitutional

features

gubernatorial presentment and (“perhaps”) direct democracy are

permissible. But logic is logic. If, as Petitioners claim, the

federal Constitution made a “deliberate” choice to vest

congressional-election-regulation

power

specifically

and

completely in the state’s ordinary “legislature” (which is

somehow defined other than by reference to state constitutional

provisions structuring a lawmaking system), then this choice

ousts governors, referenda, initiatives, and independent

redistricting commissions. (None were part of typical state

“legislatures” circa 1789, see infra pp. 20-22.) If, instead, as we

maintain, Article I’s reference to “legislature” preserved state

peoples’ and state constitutions’ broad discretion to restructure

their lawmaking systems post-1789, then governors, referenda,

initiatives, and commissions are all kosher ingredients—as are

state courts, if a post-1789 state constitution so decides. See

AIRC (upholding broad discretion).

Elsewhere, Petitioners (at 40n.9) in effect concede the

illogic of their waffle and openly invite overruling AIRC—a case

that in fact reached the right result via sound originalist and

doctrinal analysis. Were the Court to accept Petitioners’ radical

overture, the obvious next station on the logic train would oust

veto-pen-wielding governors from the federal election process—

a truly radical proposition overturning century-or-more-old

practice in virtually every state and undeniably violating this

Court’s unanimous and universally accepted ruling in Smiley

(1932). This would logically follow because vetoes were generally

absent from most state constitutions in 1789 and—under

Petitioners’ flatfooted faux-textualism—because “governors” are

distinct from “legislatures” today and were also distinct in 1789.

See infra pp.20-22.

II.

How Does ISL Fare Under an Originalist Lens?

Miserably.

Start with the text. What does “shall be

prescribed in each State by the Legislature thereof”

mean? In particular, what is a state “legislature” for

these purposes?

More precisely still: May a “legislature” include

a veto-pen-wielding governor? May it consist of an

independent agency, or the people themselves

engaged in direct democracy via initiatives,

referenda, conventions, or town meetings? May a

state constitution permissibly define its state

“legislature” to mean a body that must regulate

federal elections in a particular substantive manner?8

The public meaning of state “legislature” was

clear at the time of ratification: A state’s “legislature”

was not just something created to make laws on

behalf of the people; it was something created and

constrained by the state constitution.

This basic starting point—that state

legislatures were creatures of state constitutions,

creatures whose very existence and shape derived

from state constitutions—suffices to defeat ISL. As a

matter of Founding-era first principles, when Article

I refers to and empowers state “legislatures,” it means

things inherently subordinate to their state peoples

and state constitutions.

Article I takes state

Though some have suggested that this Court could

cleanly distinguish between state-constitutional procedural and

state-constitutional substantive limits on state legislatures,

such a made-up distinction in this domain is neither principled

nor workable. See Amar & Amar, supra note 4, at 18n.47.

legislatures as it finds them—that is, as defined and

limited by their parent constitutions.

The adoption of new republican state

constitutions across the American continent was a

transcendent achievement in the late 1770s,

acclaimed by Americans everywhere. These new state

constitutions were the beating heart of the American

Revolution. In a now-famous letter to his wife Abigail

on May 17, 1776, John Adams explained, with pride

and awe, the monumental import of the

Confederation Congress’s decisive vote to encourage

each state to adopt is own new constitution: A “whole

[state] Government of our own Choice, managed by

Persons who We love, revere, and can confide in, has

charms for which Men will fight.”9

So of course state constitutions were

understood as supreme over state legislatures at the

Founding! And of course state courts could—and

did—enforce these state higher laws against state

legislatures. Prominent state judicial review under

state constitutions predated the Philadelphia

Convention, The Federalist No. 78, and Marbury v.

Madison. Indeed, state constitutions formed the basic

template for the federal Constitution.10

9 See generally AKHIL REED AMAR, THE WORDS THAT

MADE US: AMERICA’S CONSTITUTIONAL CONVERSATION, 17601840, at 152–62 (2021) [hereinafter TWTMU] (“If we are to

understand what all the shouting was about in 1776—what the

main point of the conversation was—we must first ponder the

state constitutions that sprouted like so many daffodils up and

down the continent in the springtime of the New World.”);

GORDON S. WOOD, THE CREATION OF THE AMERICAN REPUBLIC,

1776–1787, at 46–132 (1969).

See TWTMU, supra note 9, at 181–96.

The language and logic of the Article VI

Supremacy Clause confirmed the supremacy of state

constitutions over mere state statutes, in the very

same breath that the clause confirmed the supremacy

of the federal Constitution over mere federal statutes.

The clause enumerated five types of law. In every

instance, the textual location of each type of law

tracked its legal rank, from highest law to lowest law:

The U.S. Constitution came first, then federal

statutes, then federal treaties, then state

constitutions, then state statutes. In that order,

textually and legally: “[1] This Constitution, and [2]

the Laws of the United States which shall be made in

Pursuance thereof; and [3] all Treaties made, or

which shall be made, under the Authority of the

United States, shall be the supreme Law of the Land;

and the Judges in every State shall be bound thereby,

any Thing in [4] the Constitution or [5] Laws of any

State to the Contrary notwithstanding.”11

Listen again, with fresh ears, to Chief Justice

John Marshall’s concluding passage in Marbury v.

Madison:

[I]n declaring what shall be the supreme

law of the land, the Constitution itself is

first mentioned, and not the laws of the

United States generally, but those only

which shall be made in pursuance of the

Constitution, have that rank. Thus, the

particular

phraseology

the

Constitution of the United States

confirms and strengthens the principle,

supposed to be essential to all written

AKHIL REED AMAR, AMERICA’S CONSTITUTION: A

BIOGRAPHY 299-307 (2005) [hereinafter ACAB].

Constitutions, that a law repugnant to

the Constitution is void, and that courts,

as well as other departments, are bound

by that instrument.

5 U.S. (1 Cranch) 137, 180 (1803) (emphasis added).

Now consider America’s experience under the

Articles of Confederation. In words that directly

foreshadowed the words of Article I’s Elections

Clause, the Confederation’s Article V expressly

provided that “delegates [to the Confederation

Congress] shall be annually appointed in such

manner as the legislature of each State shall direct”

(emphasis added). Between the time this text was

finalized (in November 1777) and the time the

Constitution’s essentially identical text was unveiled

(about a decade later), there were three, and only

three, states that adopted or revised their state

constitutions. Each of these three state constitutions

expressly regulated its state legislature in the

selection of Confederation congressmen. Thus, in all

three of the states that engaged in state constitutionmaking in the wake of the Articles of Confederation,

the elected state legislatures were emphatically NOT

independent.

Concretely: The 1778 South Carolina

Constitution required state lawmakers to choose

Confederation Congressmen “by ballot”; the

Massachusetts Constitution of 1780 specified the

month and manner in which the legislature had to

appoint Confederation Congressmen (June, meeting

in joint session in one room); and the New Hampshire

Constitution of 1784 prescribed the timing of

legislative action as well as the qualifications of

eligible Congressional delegations, among other

things.12

The words of the Articles (“in such manner as

the legislature of each State shall direct”) and the

later words of the Constitution (the “manner . . . shall

be prescribed in each State by the Legislature

thereof”) are semantically indistinguishable; the

Constitution simply echoed the Articles on this point.

If state constitutions could (and did) dictate rules for

state legislatures in the congressional-selection

process under the Articles, surely state constitutions

could likewise dictate rules for state legislatures in

the congressional-selection process under the

Constitution.13

Indeed—in deed—state constitutions did just

that. Post-ratification, state constitutions continued

to do precisely what they had done pre-ratification,

namely, regulate state legislatures in the domain of

congressional selection.

12 S.C. CONST. of 1778, art. XXII; MASS. CONST. of 1780,

ch. IV; N.H. CONST. of 1784, pt. II (clause beginning “The

delegates”). Petitioners (at 31) imaginatively imply that these

constitutional provisions violated the Articles, but cite precisely

zero persons at the Founding who said so. We call balderdash.

13 The Articles used the word “direct”; the Constitution,

“prescribe[].” These two words are essentially synonymous.

Let’s now reconsider the fake Pinckney Plan. The

Philadelphia framers never made any deliberate decision to

change Pinckney’s alleged word “state” to the word “legislature,”

as Petitioners (at 2, 11, 15-16) falsely claim and indeed deem

“crucial[].” The framers simply borrowed blandly from the

Articles’ language, which came with an anti-ISL gloss from all

the relevant state constitutions!

Oddly, Petitioners (at 31) essentially concede that “state”

and “legislature” were interchangeable in the Articles. But the

Constitution is the same as the Articles on this exact point.

Six of the seven state constitutions that were

adopted or revised in the Constitution’s earliest years

of operation regulated the manner of federal elections

and thereby cabined the independence of state

legislatures.14 Delaware’s 1792 Constitution required

that voters elect congressional representatives “at the

same places” and “in the same manner” as state

representatives.15 Three other state constitutions—

Georgia’s in 1789, Pennsylvania’s in 1790, and

Kentucky’s in 1792—required “all elections” to be “by

ballot” rather than viva voce. Though not singling out

congressional and presidential elections by name,

these provisions by their express terms applied to all

elections—annual elections for statewide offices, of

course, but also biennial elections for federal House

members and whatever quadrennial elections for

presidential electors might operate in the future.16

Likewise,

the

1792

New

Hampshire

Constitution and the 1793 Vermont Constitution

spoke universally in promising that “elections” of

every sort “ought to be free.” Even stronger

language—“elections shall be free and equal”—

appeared in the 1790 Pennsylvania Constitution; and

the 1792 Kentucky and Delaware Constitutions were

if anything even more categorical: “all elections

[emphasis added] shall be free and equal.” (At least

four

pre-1788

state

constitutions—Virginia’s,

The U.S. Constitution did not commence operation

until 1789. Over the next five years, seven states revised their

prior constitutions or adopted new ones: Georgia in 1789;

Pennsylvania, and South Carolina in 1790; Delaware, Kentucky,

and New Hampshire in 1792; and Vermont in 1793.

15 DEL. CONST. of 1792, art. VIII, § 2.

16 GA. CONST. of 1789, art. IV, § 2; PA. CONST. of 1790,

art. III, § 2; KY. CONST. of 1792, art. III, § 2.

Maryland’s, and North Carolina’s in 1776, and

Massachusetts’s in 1780—had similar language.)17

These clauses are obvious precursors of the language

of the current North Carolina Constitution that

Petitioners cavalierly denigrate in their Question

Presented and elsewhere (at 2) as improperly “vague.”

No early state legislature—none!—flaunted its

supposed independence by flouting its state

constitution. Petitioners do not cite a single actual

example of an early state legislature regulating

congressional elections contra its state constitution.

Petitioners do, however, cite two fake examples.18

Moreover, the two 1789 states that provided for

vetoes of general legislative action employed such

veto provisions in federal-election legislation. In

Massachusetts, bills regulating federal elections were

not enacted by the legislative houses alone but were

presented to—and subject to disapproval by—the

governor. In New York, such bills went to a Council of

Revision that included the governor and various state

judges. In these two key places—the only states with

veto rules in 1789— the legislature was thus plainly

17 N.H. CONST. of 1792, pt. I, art. XI; VT. CONST. of 1793,

ch. I, art. 8; PA. CONST. of 1790, art. IX, § v; KY. CONST. of 1792,

art. XII, § 5; DEL. CONST. of 1792, art. I, § 3.

18 Petitioners (at 32-35) are flatly wrong in suggesting

that the New York and Massachusetts legislatures violated their

state constitutions in early federal elections. These constitutions

contained no rules whatsoever governing House or Senate

elections under the Constitution. How could they? Adopted in

1777 and 1780, respectively, they predated the federal

Constitution. Petitioners have merely shown that, after 1788,

state legislatures were no longer bound by state constitutional

rules governing annual appointment to a Confederation

Congress that no longer existed. N.Y. CONST. of 1777, art. XXX

(“annually”); MASS. CONST. of 1780, ch. IV (“annually”).

understood from Day One as the lawmaking system.19

This is precisely the view we endorse, and the view

repeatedly and consistently embraced by this Court

over the course of a century. It is, however, precisely

contrary to Petitioners’ flatfooted, faux-textualist

view that “legislature” in Article I refers to a fixed

institution and not a lawmaking system.

sum:

Nine

early

states—Georgia,

Pennsylvania, South Carolina, Delaware, Kentucky,

New Hampshire, Vermont, Massachusetts and New

York—squarely rejected ISL. No early state among

the remaining six—Rhode Island, Connecticut, New

Jersey, Maryland, Virginia, and North Carolina—

embraced ISL. None of these six adopted a new

Constitution in the key time period, late 1777 through

1793. Nor did any of these six make executive or

judicial officers part of the ordinary lawmaking

process. In these six, the ISL issue never squarely

arose.

Ultimately, Petitioners offer . . . almost

nothing. They identify no evidence that any early

state ever acted on the basis of ISL ideas. They point

(at 25) to the “absence during the Early Republic of

any state-court opinion invalidating a state

legislature’s congressional map.” But if, as we believe,

state legislatures were generally and cheerfully

abiding by the constraints they (rightly) understood

state constitutions could impose, then there would of

course be nothing to see in state courts. To repeat,

Petitioners identify no affirmative state-legislative

violations.

19 Amar & Amar,

supra note 4, at 24-25.

Next, petitioners repeatedly assert (at 25-26)

that in the early republic “no state adopted any stateconstitutional provision that purported to control

congressional districting” and that “no state”

constitutionally regulated congressional elections

(italics in original). False! Petitioners elsewhere

concede (at 2, 35-39) the falsity of their claim,

undeniably as applied to Delaware.

Finally, Petitioners cite one or two Foundingera New York lawmakers20 who, in an irrelevant

context (see supra note 18), arguably professed

complete discretion in regulating federal elections.

Even if so, so what? New York did not enact any law

violative of the state constitution. Plus, the

legislature took pains to present its proposed laws

regulating congressional elections to a Council of

Revision that included state judges. These judges

were not part of the “legislature,” if that word is read

in flatfooted ISL fashion, but were indeed part of the

“legislature” if the word means “legislative system as

state constitutionally defined,” as we maintain and as

this Court’s binding precedents, Smiley and AIRC,

make emphatically clear.

So Petitioners’ early American evidence boils

down to this: In a country of millions, one or two

persons articulated an ISL understanding of Article I.

In the end, Petitioners point to NO government action

by ANY early state legislative or constitutional body

that necessarily reflected ISL belief; they fail to

adduce even a single example of a state legislative

Although Petitioners (at 34) say that two separate

speakers pushed ISL, the source they cite says otherwise,

attributing both comments to General Philip Schuyler.

body that, declaring independence

transgressed its state constitution.

(!),

openly

By contrast, Americans in every state where

the ISL issue arose in the 1780s and early 1790s did

not simply speak, but ACTED, directly contrary to

ISL tenets. These official actions involved hundreds

of government decisionmakers who NECESSARILY

rejected ISL. If ISL were the background

understanding of the words of Article I (and the

nearly identical words of the precursor Articles of

Confederation), then there would have been massive

recorded pushback in many places. But no dogs

barked.

A quick originalist addendum: Petitioners

invoke episodes many decades after ratification. This

history must be discounted appropriately. See Bruen,

142 S. Ct. at 2163 (Barrett, J., concurring) (“How long

after ratification may subsequent practice illuminate

original public meaning?”). Also, in any assessment of

evidence after 1793 —the closing date of our analysis

here21—the Court should give great weight to the

many later state constitutions emulating the early

state-constitutional practice we have highlighted

today. See Brief of Non-State Respondents (forcefully

rebutting Petitioners’ grossly misleading counts).22

21 This closing date—marking the fifth anniversary of

the Constitution’s launch in 1788-89—is not cherry-picked for

argumentative advantage. In fact, in 1796, Tennessee, became

the tenth state (out of ten) with an anti-ISL Constitution and the

tenth that strongly foreshadowed the very language of the North

Carolina constitutional clause at issue today—a clause

Petitioners mock as “vague” in their Question Presented. See

TENN. CONST. of 1796, art. III, §3; art. XI, § 5.

We suggest that Joseph Story’s mistaken pro-ISL

remarks in 1820—issued nonjudicially and impromptu, without

III.

Don’t ISL Critics Essentially Ignore the Word

“Legislature” in Article I?

Au contraire, we better explain this word than

do ISLers, who rip it from its historical and structural

context.

The word “legislature” did not float freely—

independently—in the eighteenth-century air.

Rather, the word was grounded in Founding-era law

and theory: A “legislature” was a creature of its

master constitution.

Consider the federal legislature. Nobody thinks

that the simple word “Congress” in the Constitution

enables the federal legislature to ignore its master

Constitution or its companion federal Supreme Court

specially tasked with enforcing its master

Constitution. So too, a state legislature is

presumptively bound by its master state constitution

and companion supreme court.

The word “Congress” appears in the federal

Constitution over 60 times. Context makes clear that

the word sometimes describes the House and Senate,

but not the President (as when the Constitution

discusses the “sessions” of Congress, or the

President’s provision of information to Congress). But

more often, “Congress” means House and Senate

adversarial briefing or extended deliberation—deserve little if

any weight. A towering figure, Story nonetheless erred on many

federal/state power issues: He wrongly championed a general

federal common law, wrongly embraced a federal common law of

crimes, wrongly overrode legitimate state free-soil rules, and

wrongly suggested that lower federal courts were

constitutionally required. Story’s off-the-cuff 1820 remarks are

of a piece with this pattern of error. See U.S. Term Limits, Inc.

v. Thornton, 514 U.S. 779, 856 (1995) (Thomas, J., dissenting)

(offering a similar critique of Story).

acting with the President via lawmaking, whether or

not the document specifies that “Congress” must act

“by law.” In many important contexts, the word

“Congress,” even without the “by law” qualifier, has

been properly understood—thanks to history,

structure, and context—to mean a lawmaking system

rather than a particular institution.23

Ditto for the Constitution’s various references

to a given state’s “legislature.” In context, this word

often means a state’s lawmaking system—as this

Court has repeatedly held in a century-old line of

cases. Ohio ex rel Davis v. Hildebrant, 241 U.S. 565

(1916) (White, C.J.); Smiley (1932) (Hughes, C.J.);

AIRC (2015).

Consider also the executive heads of

departments. “Congress may by Law vest the

Appointment of such inferior Officers, as they think

proper, in the President alone, in the Courts of Law,

or in the Heads of Departments.” U.S. CONST. art. II,

§ 2, cl. 2. Imagine that Congress passed a law vesting

appointment power for an assistant Attorney General

in the Attorney General, the head of the Justice

Department. Would sensible interpreters argue that

the President lacked power to direct the AG

concerning the appointment? No, even though the

Constitution distinguishes here between the

“President” and “Heads of Departments.” Everyone

would concede presidential power to cabin AG power

here. No one would read “Heads of Departments” to

mean “Independent Heads of Departments.”

(Yet) Another Reason ISL Theory

is Wrong About the Meaning of Term State “Legislature”: The

Constitution’s References to the Federal Counterpart

— “Congress,”

JUSTIA.COM

(June

30,

2022)

https://bit.ly/3s2iymR. See also AIRC, 576 U.S. at 808.

23 Vikram David Amar,

IHD theory—to coin a phrase—makes no sense

because there exists a backdrop principle of unitary

executive power over executive department heads.24

The president is his underlings’ master. Likewise,

there exists a backdrop principle that state

constitutions are masters of state legislatures. Both

backdrop principles appear explicitly in the federal

Constitution: The emphatic Article II Vesting Clause

repudiates IHD, and the five-tiered Article VI

Supremacy Clause repudiates ISL.25

But the stubborn question remains: Why did

the Founders write the Election Clause as they did,

reiterating the Articles of Confederation’s specific

reference to each state’s “legislature”? And more

pointedly: Does our reading make this word

meaningless?

Not at all.

The framers focused most intently on the

issues of the 1780s, not the 2020s. In 1787, the word

“legislature” identified an extant off-the-shelf

lawmaking apparatus in every state. The word

offered a comforting textual continuity with the

Articles (as glossed by the three key mid-1780s state

constitutions we have highlighted) and cohered with

democratic principles. Most important of all: The

24 See generally STEVEN G. CALABRESI & CHRISTOPHER

S. YOO, THE UNITARY EXECUTIVE: PRESIDENTIAL POWER FROM

WASHINGTON TO BUSH (2012); Steven G. Calabresi & Saikrishna

B. Prakash, The President’s Power to Execute the Laws, 104

YALE L.J. 541 (1994); Steven G. Calabresi & Kevin H. Rhodes,

The Structural Constitution: Unitary

Judiciary, 105 HARV. L. REV. 1153 (1992).

Executive,

Plural

The Vesting

Clauses as Power Grants, 88 NW. U. L. REV. 1377 (1994); On

Article VI, see supra text at note 11.

25 On Article II, see Steven G. Calabresi,

word cleanly jumpstarted the upcoming 1789 federal

election in most jurisdictions. In eleven states,

executives and judges were wholly outside the regular

lawmaking apparatus, but various executives and

judges nonetheless sometimes participated in

elections and appointments for state officials. In these

eleven states, Article I made clear that such

executives and judges would not make the rules for

the first federal elections. Had Article I said “state”

instead of “legislature,” there might have been more

ambiguity (and possible infinite-regress issues: who

within a “state” would decide who would decide?) in

the first federal elections in various places.

“Legislature” was a handy specification in 1789.

But as previously noted, there was one final

wrinkle to be ironed out in two key states: Did

“legislature” mean an institution (like the Congress

without the President) or a lawmaking system (like

Congress acting with the President)? In eleven states,

these two interpretations converged in result; the

institution known as the “legislature” made the laws,

and no one outside this institution participated in the

lawmaking system. But in two states—

Massachusetts and New York—executives (and in

New York, judges too) were indeed part of the

ordinary lawmaking system in 1787, via a defeasible

veto.

Were these actors—who were surely legislative

in function but arguably not legislature-ish in name—

part of the “legislature” within the original meaning

of Article I? In both states, these actors were indeed

part of the first federal elections! The Founding

generation understood “legislature” here to mean not

an institution, but a lawmaking system. This is

precisely the definition we endorse, and precisely the

definition this Court has used for more than a

century. (The Smiley case is especially decisive,

holding that a veto-pen-wielding governor is indeed

part of the Article I “legislature.”) Petitioners (at 3235) highlight the first federal elections in

Massachusetts and New York. But the actual practice

in these two states—the only two states where the

issue arose in 1789—utterly destroys Petitioners’

flatfooted definition of “legislature” as an institution

and not as a lawmaking system. See Smiley, 285 U.S.

at 369-70 (stressing this exact point about these two

states in 1789).

Under a proper originalist understanding of

“legislature,” each state’s people, acting though its

state constitution, retained broad power to redefine

the legislative system for all subsequent elections—

for example, by adding a gubernatorial veto to the

ordinary 1780s legislative system or by adopting an

alternative or supplemental legislative device, such

as initiative or referendum.

Note also that even as Revolutionary

Massachusetts gave its governor a personal veto pen

and thus made him and him alone, in effect, a third

lawmaking branch, New York’s governor shared veto

power with judges. But judges are the very actors

Petitioners wrongly contend cannot generally be

involved in federal-election policymaking!

Today, every state governor enjoys one-person

veto power, à la Revolutionary Massachusetts. And

Article I is understood in every state—and by this

Court, unanimously, in the 1932 Smiley case—to

include the governor as part of the “legislature” for

congressional-election purposes. Thus, in twelve of

the original thirteen states, the “legislature” today

refers to a different institutional cluster than it did in

the 1780s. This result has come about because Article

I from Day One has respected the broad power of state

constitutions to redefine from time to time the

contours of their respective “legislatures.” The word

“legislature” must be—and in fact is, everywhere and

uncontroversially—understood dynamically, not

statically.

At any given moment, the “legislature” of a

state for Article I purposes is thus whatever the state

people, via their state constitution and consistent

with republican-government principles, say the

“legislature”—or more precisely, the state’s

lawmaking system—is.26

This Court has said just that, and recently, in

the landmark AIRC case, whose core insight was

expressly endorsed in the even more recent and highprofile Rucho case. See supra note 2. These cases in

turn built squarely on earlier landmark cases—

Smiley (1932) and Hildebrant (1915)—stretching

back a full century. Each of these early landmark

rulings was unanimous. Each opinion issued from

this Court’s Chief Justice.

IV.

Is Empowering State Judges in Congressional

Districting Particularly Problematic?

No, although we appreciate why people steeped

in federal-courts jurisprudence might think so. From

the 1700s to the present, the relationship between

state legislatures and state courts has been very

different than the relationship between Congress and

federal courts.

26 Amar & Amar,

supra note 4, at 17-26.

At the Founding, many state judges had

powerful legislative roles. As noted above, New York’s

top judges, sitting in a Council of Revision with the

state executive, had a veto over ordinary legislation.

Also, state legislators at times had judicial roles.

Influenced by the British House of Lords, some states

at the Founding vested high judicial duties in the

state legislature’s upper chamber or the legislature as

a whole. See Calder v. Bull, 3 U.S. (3 Dall.) 368 (1798).

The super-strict distinction that ISLers rely upon—a

sharp delineation between state legislatures and

state courts—simply did not exist.27

Reflecting this Revolutionary-era landscape,

the U.S. Constitution did not generally prevent a

state from giving lawmaking and adjudicative power

to the same body. The Constitution has always

allowed a state to have two supreme courts or two

legislatures. (Today, Texas has two supreme courts

and many states split legislative power between an

ordinary

legislature

and

special

initiative/referendum process.) The Constitution also

allows a state to make its supreme “court” its supreme

“legislature” or vice versa, as this Court’s members

said long ago in Calder v. Bull.

Even now, state courts are often more like

ordinary legislatures than are unelected independent

redistricting commissions, which the Court explicitly

upheld in AIRC and blessed in Rucho. State judges

are often elected, and they openly fashion commonlaw policy. In one of the twentieth century’s most

See Steven G. Calabresi & Joan L. Larsen, One

Person, One Office: Separation of Powers or Separation of

Personnel?, 79 CORNELL L. REV. 1045, 1070n.116 (1994). ACAB,

supra note 11, at 210.

iconic cases, Justice Brandeis was emphatic:

“[W]hether the law of the State shall be declared by

its Legislature in a statute or by its highest court in a

decision is not a matter of federal concern.” Erie R.R.

Co. v. Tompkins, 304 U.S. 64, 78 (1938).

Petitioners turn federalism on its head when

they stymie states’ ability to restructure their

governments as they see fit. Petitioners take a clause

designed to respect and involve states and turn it into

a clause straitjacketing states and wrongly

aggrandizing one faraway federal court that could

never be expert on the unique laws of each state.

Although the Chief Justice’s dissent in AIRC

tried to distinguish between state devices that

supplement the ordinary state legislature and those

that supplant it, the AIRC Court correctly rejected

this distinction, which cannot be squared with Article

I’s text. If “legislature” is read flatfootedly à la

Petitioners, then any “mere” supplementation of

modern bicameral “legislatures” (even by governors,

to say nothing of auxiliary commissioners or judges)

would violate the (flatfootedly-defined) “legislature’s”

power to “prescribe”—to call the shots. If, instead, as

we maintain, “legislature” means the lawmaking

system established by the state constitution, then

even a supplanting redistricting commission or state

court is permissible.28

If a state constitution can leave redistricting to

the elected legislature but prescribe every jot and

tittle of the criteria and process the legislature must

See Vikram David Amar, Response to

Baude/McConnell on ISL, JUSTIA.COM (Oct. 17, 2022)

https://verdict.justia.com/2022/10/17/response-to-baudemcconnell-on-isl.

use, the state constitution must also be allowed to

generously

empower

other

institutions

for

redistricting purposes.

More recently in Rucho, the Court doubled

down on AIRC, in an opinion by the Chief Justice

himself, joined by both of the remaining AIRC

dissenters (Justices Thomas and Alito), plus Justices

Gorsuch and Kavanaugh. 139 S. Ct. at 2507-08.

Weren’t Legislatures Chosen Because They

Are the Most Representative Bodies?

This structural argument boomerangs.

If a state’s legislature is preferred because it

answers to the state’s voters, then what is being

privileged is the sovereignty/will of the state’s people,

not the legislature per se. If the people of a given state

decide that the best way to effectuate their will is by

creating or amending their state constitution to

constrain or restructure legislative power, contra ISL,

then

that

state-constitutional

decision

actually promotes the underlying values of popular

sovereignty and federalism.

VI.

What About

Constitution?

Other

Provisions

the

They may well be different.

Unlike Articles I and II, some constitutional

provisions use specific language that reflects specific

historical concerns with some state governmental

institutions vis-à-vis others.

For example, Section 2 of the Seventeenth

Amendment, in a single sentence, pointedly

See Amar & Amar, supra note 4, at 31-35.

differentiates between the legislatures and executive

authorities of states, and confers appointment powers

only on the latter. As one of us (Vikram Amar) has

shown elsewhere, leading proponents of that

Amendment publicly voiced concerns about

malapportionment and the racial discrimination it

often reflected. These specific concerns help explain

an express Seventeenth Amendment preference for

governors over state legislatures in filling Senate

vacancies. (Governors, elected statewide, were

immune

from

gerrymandering

and

malapportionment.)30

But no comparably pointed linguistic contrast

between a state legislature and other state organs—

much less between a state legislature and the state

constitution that creates it—exists in Articles I and

II. Nor is there any meaningful history to support

such distinctions.

VII.

What is the Proper Role for Federal Courts

Here?

A limited one, resting on bedrock principles

underlying Erie and the Tenth Amendment.31

Generally, federal courts should intervene only

when state judges so grossly misinterpret state law

30 U.S. CONST. amend. XVII, § 2 (“When vacancies

happen . . . the legislature of any State may empower the

executive thereof to make temporary appointments. . ..”); see

Vikram David Amar, Are Statutes Constraining Gubernational

Power to Make Temporary Appointments to the United States

Senate Constitutional Under the Seventeenth Amendment? , 35

HASTINGS CONST. L.Q. 727, 744-50 (2008).

See Steven G. Calabresi, “A Government of Limited

and Enumerated Powers”: In Defense of United States v. Lopez ,

94 MICH. L. REV. 752, 800-01 (1995).

that their conduct when applied to state elections

violates due process or other rule-of-law principles.32

What might seem at first blush to a federal

court as state-court overreaching might in fact be

proper under that state’s legal and interpretive

traditions. There is no general federal common law of

state constitutional interpretation (or state

legislative interpretation or state common-law

interpretation).

The test cannot be whether a state supreme

court is suitably “textualist,” as some members of this

Court might seek to define textualism. A given state

legislature, the state people who elect that state

legislature, and the spirit of that state’s overarching

state constitution that gave birth to and sustains that

state legislature might well prefer a state-law

jurisprudence that is more purposive, or

structural/holistic,

precedent-based,

representation-reinforcing, or democracy-promoting,

or canon-driven, than relentlessly textual.

Petitioners seductively urge this Court to

intermeddle in the name of the state legislature,

which may well prefer a different interpretive method

than the one favored by Petitioners, see Question 10,

infra.

If state justices err, they are subject to

correction by state legal actors. But not so if this

Court errs. North Carolina state judges were picked

by North Carolinians. This Court’s members were

not. (Have any of the current justices taken the North

Carolina bar or practiced law in North Carolina?) As

32 For elaboration,

see Amar & Amar, supra note 4, at

48-49.

tempting as a large federal judicial role might be, it

runs afoul of Federalism 101.33

Indeed, Petitioners violate federalism’s first

principles in at least three distinct ways. First,

Petitioners twist a clause designed to affirm states’

rights into a proposed doctrine sharply limiting a

state people’s ability to structure its own legislative

system—its general right to redesign its “legislature”

as it sees fit. Second, Petitioners deny that state

supreme courts are the definitive interpreters of state

law. Third, Petitioners fail to recognize that even

when the U.S. Constitution builds on state laws and

state institutions, federal courts must generally defer

to good-faith state-court interpretations of state

law.34

In short, Petitioners are urging on this Court a

massive national power grab. In response, the Court

should remain true to bedrock principles of federalism

and institutional modesty.

VIII. What About this Court’s Prior Caselaw?

Definitive

Petitioners.

caselaw

cuts

hard

against

Petitioners (at 41) invoke language from

McPherson v. Blacker, 146 U.S. 1 (1892), but the

cryptic language from this case is rank dicta, and

confused dicta at that.35 The hurried pace of litigation

in Bush v. Gore, 531 U.S. 98 (2000) prompted

mistakes by three Justices, whose views were rejected

See Amicus Br. of Conference of Chief Justices.

34 Amar & Amar,

supra note 4, at 29n.71.

Id. at 30-31.

by a Court majority that day.36 The earlier Bush v.

Palm Beach County Canvassing Board, 531 U.S. 70

(2000), decided precisely nothing on the merits.37

By contrast, three other cases—Hildebrant,

Smiley, and AIRC—directly rejected earlier ISL

claims brought before this Court. All three squarely

held that in Article I, a state’s “legislature” means its

entire legislative system as defined by its master

state Constitution.38 Even more recently, this Court’s

high-profile Rucho opinion went out of its way to

embrace AIRC. Save for Justices Barrett and

Jackson, every member of the current Court has

authored or joined a Court opinion directly

repudiating ISL.39

There is no way Hildebrant, Smiley, and AIRC

could have come out the way they did—or Rucho been

written the way it was—if ISL were valid.

Petitioners all but admit (at 40 n.9) they can

win only if AIRC is overruled. But then, Smiley and

governors’ veto pens would logically be the next to

go.40

Such a direct assault on Smiley’s unanimous,

venerable, correctly decided, nonpartisan, and deeply

entrenched ruling would be catastrophic for the

country, the Constitution, and this Court.

Id. at 8-9, 17-33.

Id. at 15.

Id. at 31-35

Id. at 33-36. See also supra note 1, pp. 24-25.

See supra note 7.

IX.

What About ISL for Article II?

Although not at issue in this case, Article II

may be on the Court’s mind, given that many have

assumed that ISL works the same for Articles I and

II. In fact, were Petitioners’ convoluted logic to prevail

for Article I, ISL for Article II would necessarily fail.

For presidential electors, Article II provides

that “[e]ach state shall appoint [electors], in a manner

the legislature thereof may direct.” Unlike Article I,

Article II makes each state, not “the legislature

thereof” the empowered actor. That is, “each state”—

not each state “legislature” —is authorized and

obligated to appoint presidential electors.

True, Article II mentions “legislatures,” but

says only that state legislatures “may”— not “shall”

or “must”— direct the manner of elections.

So even if “legislature” somehow were to mean

an “unconstrained” or “independent” body, rather

than a lawmaking system, the words of Article II by

their very terms do not require that this be the body

that adopts presidential-selection regulations.

Attempting to compensate for their lack of

serious originalist arguments, Petitioners fixate on

(their awkward interpretation of) the word

“legislature” in Article I. Consistency demands that

they must fixate equally on the facts that Article II

empowers “each state” and not each state’s

“legislature” and that Article II says that state

legislatures “may”—but need not—be involved.

To be clear, we are not suggesting that ISL

works for Article I but not for Article II. It doesn’t

work for either.41 But were this Court to embrace ISL

for congressional elections, this embrace could be

based only on a very particular, faux-textualist, way

of parsing Article I. Neutral principles would then

require the same judicial parsing of Article II, which

in turn would doom ISL for Article II. This is not what

Petitioners would want; but they would be hoisted by

their own petard.42

Must This Court Address ISL in This Case?

No.

This Court could instead affirm on the narrow

ground that the North Carolina Supreme Court has

concluded that the North Carolina legislature has

chosen to enlist state courts in guaranteeing that

congressional elections in the state conform to state

constitutional principles. Even if the North Carolina

constitution somehow does not apply of its own force,

it applies because the state legislature has

incorporated it by reference.43 If this Court has any

doubt about this, it could remand to the court below

for clarification.

Even if a state legislature were somehow free

to ignore its parent state constitution, that legislature

could surely choose to abide by that constitution and

to invite state courts to enforce that constitution as

the backdrop of all election-law statutes, state and

federal.44 The North Carolina legislature has

41 See Amar & Amar,

supra note 4, passim.

42 Petitioners expressly concede (at 2) they would lose if

Article I empowered “each state.”

See Amar & Amar, supra note 4, at 26-30.

44 An analogy: Even though the Federal Rules of Civil

Procedure do not directly apply of their own force to states, a

seemingly done that, by conferring jurisdiction on its

state courts to entertain claims of constitutional

violation in both federal and state elections.

Suppose that the North Carolina legislature

had passed a hyper-explicit statute unambiguously

specifying that the state constitution’s election-law

principles, as definitively construed by the state

supreme court, should apply to all federal elections,

and that the state supreme court should disregard

any statutory language inconsistent with the state

constitution. If so, surely the North Carolina Supreme

Court could have done what it did in this case.45

The question thus becomes: Are the North

Carolina jurisdictional enactments in the present

case best interpreted as functionally identical to our

hypothetical statute? This is a pure question of state

law for the North Carolina Supreme Court.

CONCLUSION

We respectfully urge this Court to affirm the

judgment below.

state legislature could choose to apply these Rules in state courts

by incorporating them by reference.

We reject Petitioners’ assertions (at 12, 44-48) that

this would violate nondelegation principles. Whether some state

constitutional nondelegation principle applies is a question for

North Carolina courts. Any new-minted federal rule that state

legislatures may be commandeered into federal service and may

not enlist the help of others would intrude enormously on state

autonomy, as guaranteed by the Tenth Amendment, the

Republican Government Clause, and basic principles of

federalism. Cf. New York v. United States, 505 U.S. 144 (1992).

Respectfully submitted,