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 26, 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,
v.
REBECCA HARPER, et al.,
Respondents.
On Writ of Certiorari to the
Supreme Court of North Carolina
BRIEF OF AMICUS CURIAE
EUGENE GOLDBERG IN
SUPPORT OF RESPONDENTS
Eugene H. Goldberg, Esq.
Counsel of Record
686 Harrison Avenue
East Meadow, NY 11554
(516) 485-9344
eman352@optonline.net
Attorney as Amicus Curiae
316643
A
(800) 274-3321 • (800) 359-6859
i
TABLE OF CONTENTS
Page
TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . iii
INTEREST OF AMICUS . . . . . . . . . . . . . . . . . . . . . . . . 1
SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . 1
GLOSSARY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
CIRCUMSTANCES AT THE CREATION OF
THE 1787 CONSTITUTION . . . . . . . . . . . . . . . . . . 11
THE MASSACHUSETTS GOVERNMENT
ACT (“MGA”) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
A
SHORT HISTORY OF STATE
CONSTITUTIONS 1776-1788 . . . . . . . . . . . . . . . . . . 18
THE MEANING OF “CONVENTION” IN
AMERICA 1689 UNTIL TODAY . . . . . . . . . . . . . . 21
T H E E F F E C T O F U S I NG A S T A T E
CONVENTION IN ADOPTING A STATE
CONSTITUTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
CONSEQUENCES IF ISL APPLIES . . . . . . . . . . . . . 31
ii
Table of Contents
Page
MISCELLANEOUS ARGUMENTS . . . . . . . . . . . . . . 32
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
iii
TABLE OF CITED AUTHORITIES
Page
FEDERAL CASE LAW
Arizona v. Inter Tribal Council of Arizona, Inc.,
570 U.S.1 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Ashwander v TVA, 297
US 288 (1936) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Association of Community Organizations for
Reform Now v. Edgar,
56 F.3d 791 (7th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . 9
Calder v Bull,
3 US 386 (1798) Six citations . . . . . . . 17, 20, 28, 29, 34
Carroll v. Becker,
285 US 380 (1932), aff’g 329 Mo. 501,
45 SW2d 533 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32, 33
Ex parte Clarke,
100 U.S. 399 (1879) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Ex parte Siebold,
100 U.S. 371 (1879) . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8
Hartke v Roudebush,
405 U.S. 15 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Hayburn’s Case,
2 U.S. 409 (1792) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
iv
Cited Authorities
Page
Koenig v. Flynn,
285 U.S. 375 (1932), aff’g 258 N.Y. 292, aff’g 234
A.D. 139, 254 N.Y.S. 339 (3rd Dept. 1931), aff’g
141 Misc. 840, 253 N.Y.S. 554 (Sup. Ct. Albany
Co.) Martin v Hunter’s Lessee, 14 U.S. 304
(1816) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32-33
Martin v Hunter’s Lessee,
14 U.S. 304 (1816) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Powell v McCormick,
395 U.S. 486 (1969) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Satterlee v. Matthewson,
27 U.S. 380 (1829) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Uzuegbunam v. Precewski,
141 S. Ct. 792 (2021) . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Virginia v West Virginia,
78 U.S. 39 (1870) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
UNITED STATES CONSTITUTION
Art.I§2cl.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Art.I§4Cl.1 . . . . . . . . . . . . . . . . . . . 1, 7, 8, 10, 11, 14, 18, 33
Art.I§3cl.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
v
Cited Authorities
Page
Art.I§5Cl.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 33
Art.I§6 Cl.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Art.I§10Cl.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Art. II§1 cl.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Art.III§2cl.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Article VI Cl.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21
Article V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 23
Article VII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 23
First Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Tenth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
17th Amendment §2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
FEDERAL STATUTES
2 USC §9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
2 U.S.C.§9(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2 U.S.C. §26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
vi
Cited Authorities
Page
28 USC §1257(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
52 USC §§20301 – 20311 . . . . . . . . . . . . . . . . . . . . . . . . . 31
UNITED STATES CONGRESS--State Enabling Acts
Act of Feb. 18, 1791 (Vermont) . . . . . . . . . . . . . . . . . . . . 24
Act of Feb. 4, 1791 (Kentucky) . . . . . . . . . . . . . . . . . . . . 24
Act of June 1, 1796 (Tennesee) . . . . . . . . . . . . . . . . . . . . 25
Act of April 30, 1802 (Ohio) . . . . . . . . . . . . . . . . . . . . . . . 25
Act of Feb. 20, 1811 (Louisiana) . . . . . . . . . . . . . . . . . . . 25
Act of March 1, 1817 (Mississippi) . . . . . . . . . . . . . . . . . 25
Act of March 2, 1819 (Alabama) . . . . . . . . . . . . . . . . . . . 25
DECLARATION OF INDEPENDENCE
Declaration of Independence Grievance 4 . . . . . . . . . . . 14
Declaration of Independence Grievance 21 . . . . . . . . . . 16
ARTICLES OF THE CONFEDERATION
1781 Articles of Confederation. Article II . . . . . . . . . . . . 5
vii
Cited Authorities
Page
STATE CASE LAW
Brown v. Saunders,
159 Va. 28, 166 S.E. 105 (1932) . . . . . . . . . . . . . . . . . . 32
G & D Taylor & Co. v. R.G & J.T. Place,
4 R.I. 324 (1856) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Howard Jarvis Taxpayers Assoc. v. Padilla,
62 Cal.4th 486 P.3d 628 (2016) . . . . . . . . . . . . . . . . . . . 34
Jenkins v. State Board of Elections,
180 N.C. 169, 104 S.E. 346 (1920) . . . . . . . . . . . . . . . 32
In re Judges,
8 Va. 135 (1788) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Lung’s Case,
1 Conn. 428 (1815) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Nau v. Vulcan Rail & Construct. Co.,
286 N.Y. 188 (1941) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
State ex rel Schrader v. Polley,
26 S.D. 5, 127 NW 848 (1910) . . . . . . . . . . . . . . . . . . . 33
Winchester & S.R. Co. v. Commonwealth,
106 Va. 264, 55 S.E. 692 (1906) . . . . . . . . . . . . . . 33-34
Withers v. Board of County Comm’rs,
196 N.C. 535, 146 S.E. 225 (1929) . . . . . . . . . . . . . . . 32
viii
Cited Authorities
Page
STATE CONSTITUTIONS
Massachusetts 1691 Royal Charter . . . . . . . . . . . . . . . . 12
North Carolina Constitution Article 5 §5 . . . . . . . . 31-32
1971 North Carolina Constitution Article VI
Section 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
1971 North Carolina Constitution Article XIII
§§2, 3, and 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27, 30
1899 North Carolina Session Laws Ch. 218 §6
(proposed North Carolina constitutional
amendment) enacted by popular vote in 1900 . . . . . 31
1776 Rhode Island Charter, Constitutions of the
Several Independent States of America at 42
(1785) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
STATE STATUTES
Maryland Session Laws of 1798, Ch. 115, §§12, 13, 17,
18, 19, and 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Vermont Session Laws of 1796, Ch. 79 § § 9-12 . . . . . . 17
Virginia Session Laws of 1802, Ch. 304, §2 . . . . . . . . . . 10
Virginia Session Laws of 1802, Ch. 304, §7 . . . . . . . . . . 17
ix
Cited Authorities
Page
BRITISH TREATIES AND STATUTES
1706 Act of Union with Scotland; 6 Anne Ch. 11 . . . . . . 4
Act of Union, 6 Anne Ch. 6, Article 19 . . . . . . . . . . . . . . . 8
6 Anne Ch. 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 6, 13
Declaratory Act, 6 Geo. III, Ch. 12, §2 . . . . . . . . . . . . . 11
Massachusetts Government Act, 14 Geo. 3, Ch.45
§§1, 7, and 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13
Municipal Reform Act of 1835, 5 & 6 William 4,
Ch. 76 §§2, 4, and 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
BRITISH CASE LAW
Ashby v White,
2 Lord Raym. 938, 1 Salk. 19, 92 Eng. Rep.
126 (K.B. 1703)(Holt, J., dissenting), rev’d,
VI Parliamentary History of England at
225-324 (House of Lords 1704) . . . . . . . . . . . . . . . . . 16
Bonham’s case,
77 Eng. Rep. 638, 8 Co. Rep. 107 (Com. Pl. 1610) . . 17
Campbell v Hall,
98 Eng. Rep. 1045, 1049, 2 Cowp. 206 (K.B. 1774) . 11
x
Cited Authorities
Page
The Case of Proclamations,
77 Eng. Rep. 1352, 12 Co. Rep. 74 (1611) . . . . . . . . . 21
The Case of Prohibitions,
77 Eng. Rep. 1342, 12 Co. Rep. 64 (1607) . . . . . . . . . 21
Hoblyn v The King,
1 Eng. Rep. 916, 2 Brown 229 (H.L. 1772) . . . . . . . . 17
Lord Gray’s Motion,
[1999] UKHL 53, [2002] 1 AC 124 . . . . . . . . . . . . . . . 4
M’Naghten’s Case,
8 Eng. Rep. 718, 10 C.&F. 200 (1843) . . . . . . . . . . . . 20
Newling v Francis,
3 T.R. 189, 29 Eng. Rep. 525 (K.B. 1789) . . . . . . . . . 17
Rex v Cutbush,
98 Eng. Rep. 149, 4 Burr. 2204 (K.B. 1768) . . . . . . . 16
Rex v. Head,
98 Eng. Rep. 320, 4 Burr. 2515 (K.B. 1770) . . . . . . . 17
Rex v. Spencer,
97 Eng. Rep. 1121, 3 Burr. 1827 (K.B. 1766) . . . . . . 16
FEDERALIST PAPERS
Federalist#5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
xi
Cited Authorities
Page
Federalist#10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Federalist#43 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Federalist#53 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Federalist#56 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Federalist#62 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Federalist#68 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
FOUNDING FATHER AUTHORITIES
Adams, Thoughts on Government Applicable to the
Present State of the American Colonies (1776) . . . . 12
IX The Works of John Adams (1854) . . . . . . . . . . . . . . . 15
1766 Examination of Dr. Benjamin Franklin
in the House of Commons, https://w w w.
d i g i t a l h i s t o r y. u h . e d u /d i s p _ t e x t b o o k .
cfm?smtID=3&psid=4119 . . . . . . . . . . . . . . . . . . . . . 11
Jefferson, Notes on the State of Virginia, Query XIII
(1784) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 27
xii
Cited Authorities
Page
RECORDS OF THE CONSTITU TIONA L
CONVENTION
Farrand, I The Records of the Federal Convention of
1787 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Farrand, II The Records of the Federal Convention of
1787 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
MISCELLANEOUS AUTHORITIES
Ammerrman, The British Constitution and the
American Revolution: A Failure of Precedent,
17 William & Mary L. Rev. 473 (1975-1976) . . . . . . . . 3
Bryce, A Collection of the Constitutions of the
Thirteen United States of North America
(1783) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22-23
James Burgh, I Political Disquisitions 410 (1774) . . . . . 14
The Committee of Elections Under Walpole, https://
www.historyofparliamentonline.org/periods/
hanoverians/committee-elections-underwalpole . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Cushing, Elements of the Law and Practice
of Legislative Assemblies of the United
States of America (1856) . . . . . . . . . . . . . . . . . . . . . . 18
xiii
Cited Authorities
Page
DeTocqueville, I Democracy in America (3rd ed. 1839) 33
Hamburger, Law and Judicial Duty (2008) . . . . . . . 17, 21
House Document 115-62, Precedents of the United
States House of Representatives, Ch.2 §2 . . . . . . . . . 9
Jameson, The Constitutional Convention, Its History,
Power, and Modes of Proceeding (1867) . . . . . . . 19, 27
Laughlin, A Study in Constitutional Rigidity, 10
University of Chicago L. Rev. 142 (1943) . . . . . . . . . 27
MacDonald, Select Charters and Other Documents
Illustrative of American History 1606-1775
(1914) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Nenner, By Colour of Law—Legal and Constitutional
Politics in England, 1660-1689 (1977) . . . . . . . . . . . . . 4
Note, Independent Power of State Legislatures to
Create State Congressional Districts, 45 Harv. L.
Rev. 355 (1931) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Reed, Contested Elections, 151 North American
Review 112 (1890) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Reid, The Concept of Representation in the Age of the
American Revolution (1989) . . . . . . . . . . . . . . . . . 13, 28
xiv
Cited Authorities
Page
Restatement of Contracts (2nd) §202 comment b . . . . . 11
Story, III Constitution of the United States §585 . . . . 19
Terranova, The Constitutional Life of Legislative
Instr uctions in A mer ica , 8 4 New York
University Law Review 1332 (2009) . . . . . . . . . . 28, 29
Washburn, Sketches of the Judicial History of
Massachusetts from 1630 to the Revolution of
1775 (1840) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Webster, A Comparative Study of State Constitutions
of the American Revolution (1897) . . . . . . . . . . . . . . 20
Noah Webster, collection of Essays and Fugitiv
Writings on Moral, Historical, Political
and Literary Subjects (1790) . . . . . . . . . . . . . . 14, 27-28
Wood, Creation of the American Republic 17761787 (1998) . . . . . . . . . . . . . . . . . . . . 5, 12, 18, 22, 26, 28
Wood, Power and Liberty—Constitutionalism in the
American Revolution (2021) . . . . . . . . . . . . 5, 19, 23, 28
1
INTEREST OF AMICUS1
Amicus is a New York construction lawyer and a
student of 17th-18th Century British and American history.
Amicus is admitted to the bar of this Court.
History has been ignored in briefs so far submitted
on this appeal. Therefore, this brief primarily references
18th Century historical materials and cases.
This amicus brief supports respondents, but on
different grounds.
SUMMARY OF ARGUMENT
This appeal presents a question about United States
Constitution Art. §4 Cl.1, the House of Representatives
election clause. The clause grants both a State Legislature
and Congress the right to make laws regarding United
States House of Representative elections. A State
Legislature may enact election laws, but Congress may
make its own election laws or alter the State election
laws. In the absence of Congressional action, may the
State enact an election law which trumps its own State
constitution?
The issue is one of State sovereignty between branches
of a State government. State sovereignty belongs to a
1. No counsel for a party authored this brief in whole or in
part, and no such counsel or party made a monetary contribution
intended to fund the preparation or submission of this brief.
No person other than the amicus curiae made a monetary
contribution to its preparation or submission. The parties have
consented to the filing of this brief.
2
State’s citizens. State citizens may distribute and parcel
out State sovereignty as they see fit. They may grant and
deny powers as they choose. The State’s citizens allow the
State Legislature the power to enact laws. The State’s
citizens, by their State constitution, restrain a State
Legislature in the laws the Legislature may enact.
The power to amend the North Carolina constitution
resides with its citizens. The United States Constitution
recognizes this by referencing a State convention, a special
body distinct from a State Legislature. If North Carolina’s
citizens choose, they can authorize a State convention
to do things that its State Legislature cannot, such as
create/amend the North Carolina constitution, or have
the work of the State convention be submitted for popular
approval to the State’s citizens. The North Carolina
citizens permit the North Carolina Legislature to submit
proposed amendments to the citizens for popular approval.
But the citizens of North Carolina do not allow the State
Legislature to unilaterally amend a State constitution.
The House of Representatives elections clause does
not allow the North Carolina Legislature to override its
own State constitution.
GLOSSARY
For ease of reading, a glossary has been established.
The following shorthand definitions are used.
Congress means the United States Congress.
Federalist#ZZ means Federalist paper Number ZZ.
3
ISL means the independent state legislature theory.
Parliament means the Parliament of the United Kingdom
of Great Britain and Scotland (which existed from 1706
until 1801, when the United Kingdom was expanded to
include Ireland).
USConstitution means the United States Constitution.
USHSRepresentatives means the legislative body, the
United States House of Representatives.
1787Philadelphia means the Constitutional Convention
held in Philadelphia, Pennsylvania in 1787.
1787USConstitution means the United States Constitution
as originally ratified, prior to amendment by the Bill of
Rights.
INTRODUCTION
1765 -1791 A mer ica w itnessed a debate about
sovereignty--the sharing of power. Initially, the debate was
about sharing power between Great Britain (Parliament
and King) and the American Colonies. Great Britain
denied power could be shared. The Colonies argued they
were like Scotland before the 1706 Act of Union, sharing
a common King but not a common legislature. 2
2. Ammerrman, The British Constitution and the American
Revolution: A Failure of Precedent, 17 William & Mary L. Rev.
473, 476-478 (1975-1976); Federalist#5 (Queen Anne’s letter to
the soon-to-be-abolished Scottish legislature).
4
The American Revolution and the Declaration
of Independence resulted. While fracturing their
connections with the mother country, each independent
State (beginning in 1776) tried to show the rupture
did not internally cause anarchy or threaten security
of rights and property. 3 Each State created written
constitutions demonstrating that the better parts of
Colonial government (and the rule of law) continued while
simultaneously excising British flaws.
Many of the delegates at 1787Philadelphia knew of the 1706
Act of Union with Scotland; 6 Anne Ch. 11; uniting the separate
Kingdoms of England and Scotland each of which had a common
monarch. I Farrand, The Records of the Federal Convention 493
(Rufus King on June 30, 1787); I Farrand, Id. at 198 (Nathaniel
Gorham on June 11, 1787, discussing forty [sic] Scottish members
of Commons and sixteen Scottish representative peers).
The 1706 Act of Union merged the two separate countries
into a single country, Great Britain. The unicameral Scottish
legislature (a parliament with commons and peers sitting together)
ceased to exist. To each Parliament of Great Britain, Scotland
elected forty-five members to the House of Commons. Sixteen
Scottish peers were elected by other Scottish peers in block voting
to sit as representative peers in the House of Lords. 6 Anne Ch.
23. The election of sixteen representative Scottish peers continued
until the late 20th Century. Lord Gray’s Motion, [1999] UKHL 53,
[2002] 1 AC 124 (advisory opinion).
3. Federalist#62. The comparison was with the Glorious
Revolution of 1688-1689 which legitimated the illegal and
pretended view that a Revolution never occurred. Nenner, By
Colour of Law—Legal and Constitutional Politics in England,
1660-1689, at 173 (1977).
5
Then the debate was amongst the now independent
American States in creating a national government.4 The
1787USConstitution and the Bill of Rights resulted.
The 1787USConstitution created a national government
with limited powers. It prohibited the States from
exercising certain powers, but the States kept others.
Sovereignty was shared. When Congress exercised a
proper power, Congress could also go beyond and enact
necessary and proper laws relating to the exercised power.5
The Supremacy Clause made the 1787USConstitution,
federal law, and treaties supreme over State law.
Each State was a republic. In a republic, the delegation
of government is to representatives, a smaller number
elected by the rest. Federalist#10. “The process of voting
was not incidental to representation but was at the heart
of it.” Wood, Creation of the American Republic 1776-1787
(1998) at 182. A State had a protective power to regulate
elections because it was essential to the State being a
republic.
4. The thirteen independent States adopted the 1781 Articles
of Confederation. Article II thereof read:
Each State retains its sovereignty, freedom, and
independence, and every power, jurisdiction, and
right, which is not by this Confederation expressly
delegated to the United States in Congress assembled.
5. AntiFederalists during ratification debates warned the
national government would eventually overwhelm the States
and reduce them to nonentities. Wood, Power and Liberty:
Constitutionalism in the American Revolution at 92-93 (2021). The
1791 Tenth Amendment prevented this. Id at 99.
6
The national government was also a republic. Elections
for the USHsRepresentatives were central to the national
government so as permit delegation of government from
citizens to a smaller number.6 The national government
had a similar protective power to regulate elections.
Election law in 1787 had to be considered in light of the
mechanisms for elections. Elections were much simpler.
Writs were issued calling for an election officer to conduct
an election for a certain position to be held in a place and on
a certain date. The writs were posted. Voter registration
lists did not exist.7 Voter qualifications were challenged on
polling day. Election districts were adjustable. 8 Outside of
well populated areas, a single polling place necessitated
voters might travel miles. Viva voce or ballot voting 9 was
allowed, and sometimes proxies.10
Under the protective power, the national government
could assume the entire control of elections for the
6. The national government, needing State elections
mechanisms, g ua ranteed State republican gover nment .
Federalist#43 at Point 6.
7. Arizona v. Inter Tribal Council of Arizona, Inc., 570 U.S.1,
28-29 (2013) (Thomas, J., dissenting).
8. “Whether the electors …should be divided into districts
or all meet at one place, shd all vote for all the representatives,
or all in a district vote for a number allotted to the district…”
Farrand, II The Records of the Federal Convention of 1787 at 240
(Madison’s notes of August 9, 1787).
9. Farrand, II The Records of the Federal Convention of
1787 at 240 (Madison’s notes of August 9, 1787).
10. 6 Anne Ch. 23, §6 (proxies for election of 16 Scottish
representative peers)
7
USHsRepresentatives. This would involve the national
government issuing writs, posting notices, setting places
and times for voting, the national government’s employing
persons to conduct the elections, purchasing of devices
to tally votes, creating forms in connection with polling,
enacting laws for the custody and counting of votes,
establishing procedures for resolving disputes regarding
elections, and establishing laws for accurately reporting
election results.11
1787 voting qualifications involved age, residency in
the State, length of residency, ownership of property in
the State, and/or payment of State taxes. The State and
its local/municipal government were most knowledgeable
about this information. For this reason (amongst others),
the 1787USConstitution provided suffrage qualifications
would be set by the State. Qualification verification was
also better placed in the State’s hands.
A s State and national government other w ise
had similar needs and similar protective powers,
1787Philadelphia proposed that State and national
government need not duplicate election mechanisms.
Thus, the 1787USConstitution in Art.I§4Cl.1 provided
for a concurrent power regulating USHsRepresentative
elections. The clause reads:
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
11. Ex parte Siebold, 100 U.S. 371, 396 (1879).
8
Regulations12, except as to the Places of chusing
Senators.13
Each State was commanded to enact such election laws,14
subject to Congressional control (“make or alter”).15
The 1787USConstitution contemplated a cooperative
arrangement for USHsRepresentative elections.16 Since
1788, State mechanisms are “borrowed”.17 State writs of
12. Each could “regulate” USHsRepresentative elections,
but neither created suffrage. Compare USConstitution Art.
III§2cl.2 (Congress can make “exceptions” and “regulations” to
the Supreme Court’s appellate jurisdiction) with the Act of Union
6 Anne Ch. 6, Article 19 (Parliament can “regulate” Scottish Court
of Sessions’ jurisdiction).
13. The Export Import Clause, USConstitution Art.1§10Cl.2,
explicitly shares a power between a State and Congress.
14. Martin v Hunter’s Lessee, 14 U.S. 304, 343 (1816)
(dictum).
15. Art.I§4Cl.1 contains an internal definitional hierarchy.
A State may “prescribe” and “regulate” election laws. Congress
may “make” its own election laws or “alter” State election laws.
The authority in “prescribe” and “regulate” is subordinate to the
authority to “make” and “alter.” See Ex parte Siebold, 100 U.S.
371, 386 (1879).
16. Ex parte Siebold, 100 U.S. 371, 382-396 (1879); Ex parte
Clarke, 100 U.S. 399, 404 (1879) (Election clause allows Congress
to punish in USHsRepresentative election for violating State
election law). Three Justices dissented in Ex parte Siebold. Their
dissent is found in Ex parte Clarke, 100 U.S. 399, 404-421 (1879).
17. The existing greater government, in recognizing
a subordinate local (municipal) government, conditioned
recognition on the subordinate’s election administration. 18 th
9
election issue to fill vacancies.18 Notice of elections and
places of polling are per State law. Those elected present
credentials to the USHsRepresentative clerk 19 who
examines State prepared election certificates for compliance
with State law. 20 Disputes as to elections are resolvable
by State procedures: the USHsRepresentative review of
election results can be deferred until State procedures’
completion. 21 Originally, regular USHsRepresentative
elections were not necessarily simultaneous with regular
Century Massachusetts town election mechanisms were used
to elect MassHRepresentatives. So too the 1787USConstitution
conditioned creation of the national government on state
administration of USHsRepresentative elections.
No comparison is possible to 18th Century English municipal/
local government. 18th Century City of London was an exception.
The local election mechanism was used to elect Common members.
Elsewhere, municipal / local government was generally in
exclusive corporate bodies with no community of interest with the
municipalities they were named after. The corporate electorate
was small. The corporations frequently enacted bylaws to
disenfranchise. This was not changed until the Municipal Reform
Act of 1835, 5 & 6 William 4, Ch. 76 §§2, 4, and 5.
18. USConstitution Art.I§3cl.3; see also Seventeenth
Amendment §2. See generally 2 U.S.C.§9(b).
19. 2 U.S.C. §26 provides the Clerk examines the electees’
credentials to determine if “they were regularly elected in
accordance with the laws of their States respectively, or the laws
of the United States.”
20. House Document 115-62, Precedents of the United
States House of Representatives, Ch.2 §2 at 174. See Association
of Community Organizations for Reform Now v. Edgar, 56 F.3d
791, 795 (7th Cir. 1995).
21. Hartke v Rudebusch, 405 U.S. 15 (1972).
10
local/State elections. E.g., Virginia Session Laws of 1802,
Ch. 304, §2 (USHsRepresentative election to be held on
4th Wednesday of April]. For reasons of economy, today
USHsRepresentative and local/State elections often occur
on the same day.
In the absence of Congressional action, State power as
to elections initially was greater than Congress’s power.
States were not bound by the 1st Amendment (until post1868 incorporation), but some states were constrained
by State constitutional provisions (e.g., a State’s Bill
of Rights). Absent a strict State separation of power
provision in a State constitution or State statute, State
judges/legislators can be State election officials.
Some aspects of USHsRepresentative elections
are beyond both a State’s and Congress’s power.
Candidate qualifications are established in USConstitution
Art.1§2cl.2. 22
This appeal raises one issue. When Congress is silent,
does Art.I§4Cl.1 restrict allocation of powers amongst a
State government’s branches?
Amicus argues it did not.
ARGUMENT
From a Lockean view, a constitution is a social contract
derived from the consent of the governed. A constitution,
like a contract, need not be interpreted solely by using
22. Powell v McCormick, 395 U.S. 486, 527-532 (1969) (John
Wilkes’s disqualification as a Member of Commons but omitting
reference to the 1769 Commons declaration of Henry Luttrell the
winner despite Wilkes receiving 847 more votes).
11
extrinsic dictionaries. Circumstances at creation are
important. Restatement of Contracts (2nd) §202 comment
b. Practical construction colors ambiguity. Nau v. Vulcan
Rail & Construct. Co., 286 N.Y. 188, 199 (1941).
A r t.I§4Cl.1 must be interpreted through the
lens of 17th and 18 th Century history; debates prior
to, at 1787Philadelphia, and during ratification of the
1787USConstitution; and post-1788 conduct.
CIRCUMSTANCES AT THE CREATION
OF THE 1787 CONSTITUTION
In 1765, the British Parliament laid stamp taxes on
the American Colonies. The Colonies protested. This
was “taxation without representation” and an internal
tax. 23 Parliament repealed the stamp taxes but declared
Parliamentary sovereignty over the Colonies. 24 The
Colonies responded they shared the person of the King,
but not a common Parliament.
The Colonial assemblies, particularly Massachusetts’
General Court, battled Royal Governors and disputed
Parliament’s sovereignty. Parliament insisted on
indivisible sovereignty: imperium in impervo. The
dispute was primed for explosion after Parliament passed
23. The distinction between internal and external taxes;
1766 Examination of Dr. Benjamin Franklin in the House of
Commons, https://www.digitalhistory.uh.edu/disp_textbook.
cfm?smtID=3&psid=4119; was subsequently rejected by the
Colonies.
24. Declaratory Act (1766), 6 Geo. III, Ch. 12, §2; Campbell v
Hall, 98 Eng. Rep. 1045, 1049, 2 Cowp. 206, 211-12 (K.B. 1774). See
MacDonald, Select Charters and Other Documents Illustrative of
American History 1606-1775 at 261-396 (1914).
12
the four Intolerable Acts (punishing Massachusetts for
the December 1773 Boston Tea Party).
The most significant Intolerable Act (for this appeal)
was the May 20, 1774, Massachusetts Government
Act, 14 Geo. 3, Ch.45 which abolished many rights to
Massachusetts’ self-government.
THE MASSACHUSETTS
GOVERNMENT ACT (“MGA”)
Massachusetts government derived from a 1691
Royal Charter. The Charter created a General Court
(assembly) of two bodies: the lower house, the House
of Representatives (“MassHRepresentatives”), and
an upper house, the Massachusetts Senate. The
MassHRepresentatives was annually elected 25 by town
residents. Different from other Colonial charters, the
MassHReprepresentatives elected 28 councilors to the
Massachusetts Senate, subject to the Governor’s approval.
The Massachusetts Senate with judges functioned as the
Governor’s Council. The Governor, with the advice and
consent of his Council, appointed judges, marshals and
other court officers. The officials were answerable to the
Council but paid by the General Court.
In the late 1760’s and early 1770’s, the Governor
had protracted disputes with the General Court. When
25. Altering slightly an English Whig maxim, John Adams
famously wrote “[W]here annual elections end, there slavery
begins.” Compare Adams, Thoughts on Government Applicable
to the Present State of the American Colonies (1776) at 17 and 18
with Wood, Creation of the American Republic 1776-1787 (1998) at
166. Anti-Federalists used this to criticize the 1787USConstitution.
Federalist#53 responded.
13
the Council refused to cooperate, the Governor needed
appointed officials’ cooperation to carry out his policies. The
appointed officials refused, siding with the General Court.
MGA changed this. The MassHRepresentatives no
longer elected the Senate. The Governor selected them.
MGA provided in part
…that all and every clause, matter, and therein
contained [in the 1691 Charter] which relates
to the time and manner of electing 26 the
assistants or counsellors for the said province,
be revoked… MGA§1 (emphasis added)
MGA made another important change. Effective
Aug ust 1, 1774, new tow n meetings could not be
held without Governor’s leave. Local control of local
government ended although annual town meetings would
elect MassHRepresentatives and local officers. The
Governor would control local officers. MGA§7. 27 Towns no
longer selected grand jurors. MGA§8. Town meetings had
regularly instructed MassHRepresentatives. Reid, The
Concept of Representation in the Age of the American
Revolution 86-92 (1989).
26. The Rhode Island Charter had used similar language
when discussing its Assembly’s power to pass laws concerning
elections. The Rhode Island Charter provided for enacting laws “…
to regulate and order the way and manner of all elections to offices
and places of trusts…” Constitutions of the Several Independent
States of America at 42 (1785).
27. It was not unusual for Parliament to limit business
discussed at local meetings. 6 Anne, Ch. 23, prohibited non-election
business from being discussed by Scottish peers when electing
sixteen representative peers. The Act of Union abolished the
Scottish legislature.
14
Massachusetts responded to MGA. Town meetings
prior to August 1, 1774, did not conclude, instead adjourning
or recessing. Towns elected new MassHRepresentatives.
The Governor directed the MassHRepresentatives to
meet in Salem instead of Boston. The Governor then
refused to call the MassHRepresentatives into session.
The MassHRepresentatives convened as an extra-legal
“convention” --styled a provincial Congress. 28 Courts
stopped functioning.
John Adams wrote British writer James Burgh 29
describing the situation.
28. Webster, Collection of Essays and Fugitiv Writings
on Moral, Historical, Political and Literary Subjects at 166
(1790). Calling of assemblies at unusual places is Declaration of
Independence Grievance 4. It is also the basis of Art.I§4Cl.1’s
language preventing Congress from altering the place of choosing
a senator.
29. Burgh was a Whig writer critical of the unreformed House
of Commons. In Volume I Political Disquisitions 410 (1774) he wrote
It cannot be just, that what our kings have no right
to take away, our representatives may give without
law, or that the people should be obliged to endure the
tyranny of 500 usurpers, more than of one, since no
number nor quality of persons can make that lawful
which in its own nature is not so.
Burgh was widely read in the American Colonies. E.g.,
Federalist#56’s footnote. Echoes of his writings can be found in
Jefferson’s famous comment about elective despotism not being
the Revolution’s aim: “173 despots can be as oppressive as one.”
Jefferson, Notes on the State of Virginia, Query XIII part 4, at
195 (1784).
15
We are, in this province, Sir, at the brink
of a civil war. Our Alva 30 , Gage 31, with his
fifteen Mandamus counsellors 32 , are shut up
in Boston, afraid to stir, afraid of their own
shades, protected with a dozen regiments of
regular soldiers and strong fortifications in the
town, but never moving out of it. We have no
council, no house, no legislative, no executive.
Not a court of justice has sat since the month
of September. Not a debt can be recovered,
nor a trespass redressed, nor a criminal of any
kind brought to punishment. What the [British]
ministry will do next, is uncertain. Enforce the
act for altering our government they cannot; all
the regiments upon the establishment would not
do it, for juries will not serve33 nor represent.
Letter of December 28, 1774, IX The Works of
John Adams at 350, 351 (1854).
30. Fernando Álvarez de Toledo y Pimentel, 3rd Duke
of Alba, commanding Spanish troops occupying the Spanish
Netherlands in 1567-1573.
31. General Thomas Gage, Royal Governor of Massachusetts,
May 1774 until September 1775.
32. Gage selected new counsellors and judges for his
Council using the writ of mandamus, hence the name “Mandamus
counsellors.” Washburn, Sketches of the Judicial History of
Massachusetts from 1630 to the Revolution of 1775 (1840) at 161.
Those outside of Boston were threatened with mob violence if they
joined. Many refused.
33. Court clerks and jurors refused to serve. Washburn,
Sketches of the Judicial History of Massachusetts from 1630 to
the Revolution of 1775 (1840) at 195.
16
Declaration of Independence Grievance 2134
concerned MGA.
In 1774 as a result of MGA, Nathaniel Gorham
(the Massachusetts House of Representative from
Charlestown) lost his right to vote for members of the
Massachusetts Senate.
18th Century remedies existed for a loss of the right
to vote.
A voter maliciously denied his vote by a government
official could sue for damages. Ashby v White, 2 Lord
Raym. 938, 1 Salk. 19, 92 Eng. Rep. 126, (K.B. 1703)
(Holt, J., dissenting), rev’d, VI Parliamentary History of
England at 225-324 (House of Lords 1704)(a decision that
“a person having a right to give his vote at an election,
and being hindered so to do by the [election] officer, who
ought take the same, is without remedy …is destructive
of the property of the subject, against the freedom of
elections, and manifestly tends to encourage corruption
and partially in officers…”) discussed in Uzuegbunam v.
Precewski, 141 S. Ct. 792, 799 (2021).
If a State limited suffrage in violation of its charter,
quo warranto would lie to invalidate election results. Rex
v. Spencer, 97 Eng. Rep. 1121, 3 Burr. 1827 (K.B. 1766)
(bylaw limiting electorate in conflict with charter is void);
Rex v Cutbush, 98 Eng. Rep. 149, 4 Burr. 2204 (K.B. 1768)
34. “For taking away our Charters, abolishing our most
valuable Laws and altering fundamentally the Forms of our
Governments.”
17
(same); Rex v. Head, 98 Eng. Rep. 320, 4 Burr. 2515 (K.B.
1770) (same). 35
Some statutes allowed a voter a qui tam action
concerning election issues. Virginia Session Laws of
1802, Ch. 304, §7 ($100 penalty, half to plaintiff, half to
commonwealth); Maryland Session Laws of 1798, Ch. 115,
§§12, 13, 17, 18, 19, and 23.
An election officer could be criminally prosecuted for
violating election laws. Vermont Session Laws of 1796,
Ch. 79 § § 9-12.
Gorham however had no remedy because Parliament
by statute changed the Massachusetts Charter and
deprived him of his vote. 36
In Great Britain, there was another remedy. The
unwritten “Law of Parliament” made each of the House of
Commons and the House of Lords the sole judge of its own
members’ election results.37 Each house was the sole judge
35. The principle was upheld in Hoblyn v The King, 1 Eng. Rep.
916, 2 Brown 229 (H.L. 1772). If the election bylaw did not conflict
with the charter, it would stand. Newling v Francis, 3 T.R. 189, 29
Eng. Rep. 525 (K.B. 1789).
Hamburger, Law and Judicial Duty at 188 (2008) cites
Hoblyn as a source of judicial review in the United States. Hoblyn
and its predecessors are cited here because of the remedy for denying
suffrage.
36. Parliament was not bound by natural law. Calder v Bull,
3 US 386, 398 (1798) (Iredell, J.). But cf. dictum in Bonham’s case,
77 Eng. Rep. 638, 8 Co. Rep. 107 (Com. Pl. 1610).
37. A f t er 170 6 , a d i sput e about elect i ng S cott i sh
Representative Peers was heard by the House of Lords. In the
United States, see USConstitution Art.1§5Cl.1.
18
of its own election disputes. This “Law of Parliament” was
not based on judicial reasoning. 38
Nathaniel Gorham later was a Massachusetts delegate
to 1787Philadelphia. He was Chairman of the Committee
of the Whole. He played a significant role on the Committee
on Detail. He helped write the 1787USConstitution to
forever prevent Congress from fundamentally altering a
State’s Constitution.
Art.I§4Cl.1 was written with MGA in mind.
A SHORT HISTORY OF STATE
CONSTITUTIONS 1776-1788
The American Revolution began in April 1775. At the
May 15, 1776, urging of the Second Continental Congress39
to deal with the exigencies of the circumstances, eleven
American States enacted their own written constitutions.40
38. Legislative statements as to contested election disputes
are of lesser authority than judicial authority. Election contests
are highly political when determined by a legislature. Reed,
Contested Elections, 151 North American Review 112, 113-114
(1890); Cushing, Elements of the Law and Practice of Legislative
Assemblies of the United States of America at 57-58 (1856);
see The Committee of Elections Under Walpole, https://www.
historyofparliamentonline.org/periods/hanoverians/committeeelections-under-walpole.
39. Wood, Creation of the American Republic 1776-1787 at
131-132 (1998 ed.)
40. South Carolina and Rhode Island had already acted.
Wood, Creation of the American Republic 1776-1787 at 131 (1998
ed.)
19
Rhode Island’s and Connecticut’s legislatures kept
their colonial charters but eliminated references to the
Crown. Wood, Power and Liberty: Constitutionalism
in the American Revolution at 34-35(2021); Story, III
Constitution of the United States §585 (noting 1662 and
1663 royal charters).
Two provincial congresses (North Carolina and South
Carolina) acting as legislatures adopted new constitutions.
Three provincial congresses (New Jersey, Virginia,
and New York) each denominated itself as a convention
and adopted a new constitution. Six States (Delaware,
Pennsylvania, Maryland, Georgia, Massachusetts, and
New Hampshire) used popularly elected conventions to
create new State constitutions. Vermont, not yet a state,
by convention adopted a constitution in 1777. See Jameson,
The Constitutional Convention, Its History, Power, and
Modes of Proceeding (1867) §§130-158. More will be said
infra about conventions.
By 1784, the original thirteen States each had written
state constitutions.41
The constitutions varied. Many had a two-house
leg islatu re, but Pennsylvania had a unicamera l
legislature. 4 2 Some States adopted Montesquieu’s
separation of powers. Others did not. Some States adopted
strict separation of functions by barring State legislators
41. The 1787USConstitution in Article VI Cl.2 supremacy
clause states in part “…any Thing in the Constitution …of any
State to the Contrary notwithstanding.”
42. Vermont also had a unicameral legislature.
20
and Governors from serving as judges. Others did not.43
New York’s upper house and some of its judges sat as
its highest judicial court, the New York Court of Trials
of Impeachment and Correction of Errors (modeled on
the 18th Century House of Lords). Some barred State
legislators from simultaneously serving as executive
officers.44 Massachusetts allowed advisory opinions.
Seven States included Bills of Rights in their
constitutions. Connecticut created a statutory bill of
rights.45
It was a time of constitutional experimentation.
There were developments as to judicial review. In
Virginia, judges issued an order outside a legal proceeding-a resolution--declaring a state law unconstitutional.
Compare In re Judges, 8 Va. 135 (1788) with Hayburn’s
Case, 2 U.S. 409 (1792). 46 Pennsylvania and Vermont
43. There was no universal principle of separation of power
applicable to all states. Rhode Island’s General Assembly occasionally
exercised judicial power until 1843. G & D Taylor & Co. v. R.G & J.T.
Place, 4 R.I. 324, 340 (1856). Rhode Island then adopted a written
constitution. Connecticut’s General Assembly exercised judicial
power; Calder v Bull, 3 U.S.386 (1798); Lung’s Case, 1 Conn. 428
(1815); until a new written constitution was adopted in 1818.
44. E.g., 1787USConstitution Art.I§6 Cl.2.
45. Webster, A Comparative Study of State Constitutions of
the American Revolution at 69 footnote 9 (1897).
46. A “resolution” was a type of advisory opinion by English
judges. For example, the rule in M’Naghten’s Case, 8 Eng. Rep.
718, 10 C.&F. 200 (1843), was an answer to the House of Lords
on legal issues resulting from M’Naghten’s not guilty verdict.
21
created a council of censors to assess/prevent State
Legislatures from violating written State constitutions
and to opine on the need for constitutional reform.47 Some
State courts (in lawsuits) took their first steps to declaring
State statutes unconstitutional for violating written State
constitutions. See Hamburger, Law and Judicial Duty
(2008).
Thus, at 1787Philadelphia, there was no consensus
as to how to deal with State Legislatures violating State
written constitutions. But 1787Philadelphia had definite
views on how the national government’s judiciary would
deal with Congress’s violations of the 1787USConstitution.
THE MEANING OF “CONVENTION”
IN AMERICA 1689 UNTIL TODAY
ISL focuses on State Legislature and emphasizes the
word “Legislature” and the power of the Legislature in
its analysis of the 1787USConvention.
The 1787USConstitution A rticle V contrasts a
State “convention” with a State Legislature. The 1787
USConstitution in Article VII refers to State “conventions.”
ISL omits reference to the word “convention” in discussing
the 1787USConstitution. There is a distinction between a
State “convention” and a State Legislature. The distinction
is significant.
Several of Coke’s famous opinions in the early 17th Century were
resolutions. E.g., The Case of Prohibitions, 77 Eng. Rep. 1342, 12
Co. Rep. 64 (1607); The Case of Proclamations, 77 Eng. Rep. 1352,
12 Co. Rep. 74 (1611).
47. M a d i s on pr op o s e d t he c ou nc i l of c en s or s at
1787Philadelphia, but this was rejected.
22
“Convention” (when used in connection w ith
government) meant, in the 1780’s, an extra-legal body.
The word was originally British. At monarchical
interregnums, conventions convened in 1399 (England),
1660 (England), and 1689 (in each of England and Scotland)
to allow the legislature to assemble.
In America, “convention” had a broader meaning. A
State’s citizens could, by convening a constitution, bridge
a gap in constitutional authority/continuity. A convention
could propose/authorize governmental acts which an
existing legislature could not. See generally Wood,
Creation of the American Republic 1776-1787 (1998) at
310-343.
A convention assembled in 1689 in Massachusetts
(after Governor Edmund Andros was overthrown),
necessitated because Charles II (and the English Court of
Chancery) revoked the original colonial charter. In 1689
during Leisler’s rebellion and when New York’s status as
a royal proprietary colony was in limbo, a convention was
held in Albany. The 1754 Albany Convention considered
Benjamin Franklin’s plan of colonial union. The 1765
Stamp Act Congress was also called a convention. In or
about 1774-1776, many State counties held conventions.
After 1776, four States empowered special popularly
elected assemblies denominated as conventions to adopt
new constitutions (Delaware, Pennsylvania, Maryland, and
Georgia). In Massachusetts, a specially elected assembly
in 1779-1780 drafted a state constitution, which was
popularly approved by its citizens. See generally Bryce,
A Collection of the Constitutions of the Thirteen United
23
States of North America (1783). In New Hampshire, a
specially elected assembly drafted a state constitution and
put it to towns for approval in 1784. See generally Wood,
Power and Liberty: Constitutionalism in the American
Revolution 32-53(2021).
1786 witnessed the Annapolis Convention.
1787Philadelphia was a “convention.” It exceeded
the authority granted by the Articles of Confederation
Congress—to report to that Congress recommendations
for rev ising the A r ticles of Con federation. T he
1787USConstitution exceeded the authority granted by
providing for ratification through a method not provided
in the Articles of Confederation.
The 1787USConstitution Articles V and VII refer to
State conventions. Each granted additional powers to State
conventions as to ratification of the 1787USConstitution,
proposing A mendments, or calling for a national
convention.
Within eighty years after ratif ication of the
1787USConstitution, the seven original States (which
created constitutions without using a convention) had
adopted new constitutions. The new constitutions were
drafted by popularly elected State conventions which
were subsequently popularly approved. This is set forth
below in tabular form.
24
State
Year of Convention and Approval
Connecticut
1818
New York
1821
Virginia
1830
Rhode Island
1842
New Jersey
1844
North Carolina
1868
South Carolina
1868
After 1791, new States were admitted. The process
was simple: Congress passed an enabling act for admission.
Admission promised equal treatment with those States
already admitted. In many enabling acts, drafting of a
constitution in a constitutional convention is referenced.
What follows is a brief history of State enabling acts
including comments about State constitutional conventions
and adoption of a State constitution.
Vermont by popularly elected convention in 1777,
enacted a state constitution. Vermont was admitted by
enabling act, Act of Feb. 18, 1791, which was silent as to
Vermont’s constitution.
Kentucky’s enabling act was silent as to its state
constitution when admitted. Act of Feb. 4, 1791. Kentucky
25
by convention adopted a state constitution in 1792, after
admission.
Tennessee by popularly elected convention adopted a
state constitution before Congress passed the Tennessee
enabling act, Act of June 1, 1796, Ohio’s enabling act,
April 30, 1802, began a pattern for many states arising
out of the Northwest Territory. §5 of the Ohio enabling
act called for drafting a state constitution by popularly
elected convention with the convention to either adopt or
require popular approval.
Louisiana’s enabling act, Act of Feb. 20, 1811, called
for drafting a state constitution by popularly elected
convention and adoption by the convention.
Mississippi’s enabling act, Act of March 1, 1817,followed
Louisiana’s model.
Alabama’s enabling act, Act of March 2, 1819,
followed Louisiana’s model, calling for a popularly elected
convention to draft and adopt a state constitution.
Amicus omits many other examples of subsequent
state admissions but note five exceptional cases.
The admissions of the states of Arkansas, Michigan,
Florida, California and Oregon were similar to Tennessee’s
admission. Each initiated their own popularly elected
conventions which drafted a state constitution. Following
adoption of a state constitution, Congress passed an
enabling act.
26
West Virginia also adopted a constitution before
passage of an enabling act. The West Virginia enabling act
references both the convention and the popularly adopted
State constitution. See Virginia v West Virginia, 78 U.S.
39, 44 (1870).
To summarize, after 1788, putative states by convention
drafted written constitutions before admission48 and
sometimes afterwards. Many times, Congress in advance
empowered the putative state to elect a convention to draft
a state constitution.
1787USConstitution is silent as to what is the
difference between a State convention and a State
Legislature, and what powers a State convention has that a
State Legislature does not. Circumstances at creation and
history—practical conduct—illustrates the difference. A
State convention has “a power superior to the ordinary
legislature.” Wood, Creation of the American Republic
1776-1787 (1998) at 328-343. A State convention has a
power a State Legislature does not: the power to draft/
create a State constitution.
Three additional consequences follow, dependent
upon the language in a State constitution. First, a State
convention can draft an entirely new State constitution or
amendments to an existing State constitution. The greater
power includes the lesser power. Second, popular approval
of a new State constitution similarly allows for popular
approval of amendments. Third, popular approval may
alone be sufficient for a State constitutional amendment.
48. The typical state creation act allowed for constitution
adoption by the convention or by popular vote.
27
Thus, a State constitution may provide for popular
approval of a State constitutional amendment drafted by
a State Legislature. Laughlin, A Study in Constitutional
Rigidity, 10 University of Chicago L. Rev. 142 n.4 (1943).49
The States are still laboratories, experimenting in
writing constitutions.
THE EFFECT OF USING A STATE CONVENTION
IN ADOPTING A STATE CONSTITUTION
Before 1787Philadelphia, Jefferson pondered the fact
that Virginia’s provincial Congress (in default of its House
of Burgess) created and enacted its Revolutionary era
constitution. Jameson, The Constitutional Convention, Its
History, Power, and Modes of Proceeding (1867) §138. The
Virginia House of Burgess ceased to exist in mid-1776,
and the Virginia General Assembly began. The General
Assembly (and its predecessor) had authority to create
laws, but its predecessor had created something more
fundamental, the Virginia constitution. There had to be a
difference between a law and the Virginia constitution, else
its General Assembly could amend its written constitution
as easily as it could grant a turnpike franchise. Compare
Jefferson, Notes on the State of Virginia, Query XIII part
5, at 197-205 (1784) with Noah Webster, lawyer and later
lexicographer, Collection of Essays and Fugitiv Writings
on Moral, Historical, Political and Literary Subjects at 7249. This would allow for a State Constitutional amendment
enacted by initiative. Here the North Carolina Constitution allows
the State Legislature, by a 3/5 vote, to propose an amendment
to the State Constitution subject to approval by its citizens. 1971
North Carolina Constitution Article XIII §4.
28
80 (1790). 50 See Wood, Creation of the American Republic
1776-1787 (1998) at 273-282. Connecticut’s constitution was
equally malleable. 51
In a similar vein, some argued State legislators
were their constituents’ agents, bound to follow their
constituents’/principals’ direction. Others argued they
were fiduciaries, with discretion to act as legislators saw
in the best interest. If what legislators did displeased,
citizens by election could unseat them.52 Reid, The Concept
of Representation in the Age of the American Revolution
102-109 (1989); Wood, Creation of the American Republic
1776-1787(1998) at 379-389.
Today, the two debates are resolved by referencing
a specially elected convention in adopting a State
constitution. All State governmental power flows from a
State’s citizens. The State’s citizens parcel and distribute
the State’s powers amongst a State government as they
see fit. Citizens grant legislators powers to enact State
50. Webster’s essays were earlier published. Wood, Creation
of the American Republic 1776-1787 (1998) at 376-382. See
generally Wood, Power and Liberty—Constitutionalism in the
American Revolution 48-53 (2021).
51. Calder v. Bull, 3 U.S. 386, 395 (1798) (Patterson, J. The
Connecticut Constitution is made of usages); at 398 (Iredell, J.,)
(Connecticut Legislature has been in the uniform uninterrupted
habit of a general superintending power over its courts); at
392-93(Chase, J. asserted by counsel that Connecticut constitution
is composed of charter, acts of legislature, and usages)
52. Terranova, The Constitutional Life of Legislative
Instructions in America, 84 New York University Law Review
1332, 1343-1349 (2009).
29
laws. Citizens do not grant legislators the unilateral
power to create/amend a State constitution.53 The power
to create/amend a State Constitution is found elsewhere—
with the citizens. The citizens grant some of that power to
a convention. 54 The citizens retain the power to approve
the convention’s work.
Jefferson’s quandary is resolved. Constituents request
legislators follow their instructions. 55 Legislators have
discretion to enact laws. Election defeat is not the only
method of controlling State legislators. State legislators
are denied in advance the authority to contravene an
expressed State constitution. 56
ISL ignores a basic rule of document interpretation.
An entire document including all its parts must be read
harmoniously together. There is purpose for using a specific
phrase in one part of a document but then contrasting it
53. There is no need to consider to what extent that the body
calling a State convention can limit the convention’s agenda.
54. Some States today allow citizen initiative regarding
States constitution. Some States require the Legislature to initiate
constitutional amendments, but they nonetheless require State
citizen approval.
55. Terranova, supra.52, at 1360-1367.
56. [T]o guard against so great an evil [as a legislature able to
enact whatever it chose], it has been the policy of all the American
states, which have, individually, framed their state constitutions
since the revolution…to define with precision the objects of the
legislative power, and to restrain its exercise within marked and
settled boundaries. If any act …of the Legislature of a state,
violates those constitutional provisions, it is unquestionably void…
Calder v. Bull, 3 U.S. 386, 399 ((1798) (Iredell, J.)
30
with another phrase in a different part. If ISL were
read into the USHsRepresentative election clause, ISL
would undermine the purpose of written constitutions in
the thirteen original States—demonstrating continuity
and rule of law. For new states subsequently admitted,
ISL would ignore Congress’s repeatedly empowering or
recognizing putative state constitutional conventions in
State enabling acts.
ISL, reduced to its essentials, argues that a State
Legislature performs a federal function when prescribing
the times, manners and places for USHsRepresentative
elections. Under ISL, performing a federal function
permits the North Carolina Legislature to traverse
bounds created by North Carolina citizens in their
State constitution. 57 The State Legislature is not a State
convention. Nor is the State Legislature equal to the
citizens of North Carolina. Because ISL limits a State’s
citizens’ distribution of sovereignty, ISL should be found
inapplicable.
Further, when read textually, ISL is applicable only
to the seven States which, by unilateral Legislative action,
created their own State Constitutions. North Carolina was
such a state. Circumstances changed. In 1868, a North
Carolina convention drafted a constitution which was
57. 1971 North Carolina Constitution A rticle XIII §2
provides “The people of this State reserve the power to amend
this Constitution and to adopt a new or revised Constitution.
This power may be exercised by either of the methods set out
hereinafter in this Article, but in no other way.” One way is by
convention. The other way is by the North Carolina Legislature
on a 3/5 vote submitting a proposal to the North Carolina citizens
for popular approval. Id. at §§3 and 4.
31
popularly approved. In 1971, a North Carolina convention
drafted a new constitution which was popularly approved.
ISL no longer applies to North Carolina.
CONSEQUENCES IF ISL APPLIES
ISL is not merely a contest between two branches
of state government. It can also involve personal rights.
A hypothetical illustrates this. In 1899, the North
Carolina Legislature proposed a constitutional amendment;
1899 North Carolina Session Laws Ch. 218 which was
popularly approved in 1900. Amicus focuses on §6 which
provides:
All elections by the people shall be by ballot, and
all elections by the [North Carolina] General
Assembly shall be viva voce. 58
Suppose the North Carolina Legislature enacts a
law. The law provides in USHsRepresentatives special
elections (filling unexpired terms), each voter shall deposit
his sealed ballot in a separate ballot box which box is
labeled for the candidate for whom the vote is cast. 59 The
law provides a misdeposited ballot is not counted. This
prevents election fraud and facilitates counting. The
deposit, however, makes a voter’s choice public. When
ballots are public, retaliation may follow; free will is
suppressed. The hypothetical law violates North Carolina
58. This is found in 1971 North Carolina Constitution Article
VI Section 5.
59. State citizens overseas (mainly armed forces) covered
by 52 USC §§20301 – 20311 are excepted.
32
Constitution Article 5 §5. Withers v. Board of County
Comm’rs, 196 N.C. 535, 146 S.E. 225 (1929); Jenkins v.
State Board of Elections, 180 N.C. 169, 104 S.E. 346 (1920).
The hypothetical law does not violate 2 USC §9.60
A voter refuses to deposit his ballot in a labeled box.
An election worker destroys this ballot. The voter sues
for damages. The worker may defend by proving absence
of malice: the worker complied with the new law. But the
new law did not contemplate destruction. The new law
provided the ballot would not be counted. The voter loses
his right to challenge the law and if successful, have his
ballot counted. May the voter recover damages?
In t h i s app ea l, t he remedy i s a n order for
reapportionment--but in the proper circumstances, it
could be monetary damages. ISL must be analyzed
without regard to the remedy.
MISCELLANEOUS ARGUMENTS
Amicus will not repeat arguments made elsewhere
but will raise other concerns.
Older authority should not be forgotten. Carroll v.
Becker, 285 US 380 (1932), aff’g 329 Mo. 501, 45 SW2d
533; Brown v. Saunders, 159 Va. 28, 166 S.E. 105 (1932);
Koenig v. Flynn, 285 U.S. 375 (1932), aff’g 258 N.Y. 292,
60. All votes for Representatives in Congress must be by
written or printed ballot or voting machine the use of which has
been duly authorized by the State law; and all votes received
or recorded contrary to this section shall be of no effect.
2 USC §9
33
aff’g 234 A.D. 139, 254 N.Y.S. 339 (3rd Dept. 1931), aff’g 141
Misc. 840, 253 N.Y.S. 554 (Sup. Ct. Albany Co.); State ex
rel Schrader v. Polley, 26 S.D. 5, 127 NW 848 (1910); Note,
Independent Power of State Legislatures to Create State
Congressional Districts, 45 Harv. L. Rev. 355 (1931).61
There is a difference between Art.I§4Cl.1 and the
Presidential Electors clause, USConstitution Art. 2 §1
cl.2. Congress has control over USHsRepresentative
election laws. Each house of Congress is the judge of
elections, returns and qualifications of its members.
USConstitution Art. 1 §5 Cl.1. The USConstitution
calls for casting of presidential electoral ballots in a
State with the State’s certificate of results to be sent
to Congress. The USConstitution omits mention of any
Congressional control over the Presidential Elector
process, only specifying opening by Congress of State
sealed certificates (which can lead to a possible contingent
presidential/vice presidential election). The separate
balloting by electors was deliberate, ensuring any tumults
in a Presidential election were dispersed amongst the
states, and not centralized in one place. DeTocqueville,
I Democracy in America (3rd ed. 1839) 124-127 (mode of
election); Federalist#68.
The USConstitution does not generally prohibit
a State from distributing its powers amongst its own
branches. Satterlee v. Matthewson, 27 U.S. 380, 413 (1829)
(“There is nothing in the constitution of the United States,
which forbids the legislature of a state to exercise judicial
functions”); Winchester & S.R. Co. v. Commonwealth, 106
61. This Court’s opinions in Carroll v. Becker and Koenig v
Flynn are cited by the Non-State Respondents.
34
Va. 264, 55 S.E. 692 (1906). For example, a State may ask
its populace for an advisory ballot on future legislative
action. Howard Jarvis Taxpayers Assoc. v. Padilla, 62
Cal.4th 486, 363 P.3d 628 (2016).
This appeal is on certiorari under 28 USC §1257(a)
from the North Carolina Supreme Court. The statute
embodies a longstanding policy limiting this Court’s
review of State Court decisions.
Without giving an opinion, at this time, whether
this Court has jurisdiction to decide that any law
made by Congress, contrary to the Constitution
of the United States, is void; I am fully satisfied
that this court has no jurisdiction to determine
that any law of any state Legislature, contrary
to the Constitution of such state, is void.
Further, if this court had such jurisdiction, yet
it does not appear to me, that the resolution (or
law) in question, is contrary to the charter of
Connecticut, or its constitution, which is said
by counsel to be composed of its charter, *393
acts of assembly, and usages, and customs. I
should think that the courts of Connecticut
are the proper tribunals to decide, whether
laws, contrary to the constitution thereof, are
void. In the present case they have, both in the
inferior and superior courts, determined that
the Resolution (or law) in question was not
contrary to either their state, or the federal,
constitution.
Calder v Bull, 3 US 386, 392-393 (1798) (Chase, J.).
35
Someday, a State’s citizens in a State Constitution
may expressly set forth the relationship between citizen
sovereignty and the Legislature and grant the State
Legislature power to make unilateral amendments to the
State constitution. Someday, a State’s citizens may in a
State Constitution limit its Legislature’s power to choose
Presidential Electors. These issues are not presently
before the Court. When and if this happens, ISL can be
considered anew. Ashwander v TVA, 297 US 288, 346-347
(1936)(Brandeis, J., concurring).
CONCLUSION
Petitioners’ appeal should be denied in all respects.
Respectfully submitted,
Eugene H. Goldberg, Esq.
Counsel of Record
686 Harrison Avenue
East Meadow, NY 11554
(516) 485-9344
eman352@optonline.net
Attorney as Amicus Curiae
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.