I’ve had my share of skepticism here at ELB over the legislature’s claims in Moore v. Harper, including questions about whether there is a consistent, judicially-manageable standard that the petitioners could articulate, and whether there is a political question lurking inside the case.
But I have plenty of questions for the respondents in the case, too. And one is about a critique of the petitioners’ interpretation of the Legislature Thereof Clause roughly as follows:
[Premise 1] At the founding, state constitutions routinely put rules in place for elections, including congressional elections;
[Premise 2] State courts routinely interpreted state constitutions to engage in judicial review* of the actions of state legislatures; therefore
[Conclusion] The North Carolina Supreme Court appropriately engaged in routine judicial review of the state legislature by interpreting the state constitution for rules put in place for elections, including congressional elections.
This imperfectly-summarized syllogism elides an important question. Namely: did state courts at the founding conceive of their jurisdiction as including the power to review political questions, even political questions specifically enumerated in state constitutions? I think the answer is no.
At the outset, I note what this blog post is not about. It’s not a question of whether the state constitution’s definition of “legislature” may include some constraints on the legislature more than mere procedural rules, or that the boundaries of that definition are less than obvious. It’s not a question of whether the state legislature may invite the state courts to participate in the process. And it’s not a question of whether, over time, “liquidation” of increased judicial involvement suggests the federal courts should not get involved. All are interesting claims in their own right.
Instead, it’s really questioning a series of claims about the interaction of state constitutions and state courts in 1787. I think both premises above are true. That is, state constitutions did mention specific rules for elections, at least some of which could be construed as addressing congressional elections. And state courts did engage in judicial review.
But there’s an inferential link missing here. Specifically: did the state judiciary always engage in judicial review of every provision of the state constitution, or did it lack the power to review certain kinds of judicial provisions?
The originalist evidentiary weight, I think, suggests the latter.
Start with the remedy. If you sued in a state court for relief under the state constitution, what sort of relief could you obtain?
At law, mandamus was unavailable. Founding-era precedent suggests state courts lacked mandamus power over the head of another branch of government (here, the legislature), and apportionment and redistricting in particular were not deemed “ministerial” actions that mandamus could remedy.
In equity, injunctive relief would not run to political rights. The legislature traditionally had the power to enforce rules relating to political rights. The state judiciary would not intervene. (And, in fact, in some states at the Founding, there were no chancery courts in equity!) Consider some citations from the turn of the 20th century about how state courts conceived of their power:
- “The laying off and defining the congressional districts is the exercise of a political and discretionary power of the legislature, for which they are amenable to the people, whose representatives they are.” Wise v. Bigger (Va. 1884)
- “This court has no power to apportion the number of senators and representatives. It could not force upon the people of the state an illegal apportionment act.” State ex rel. Sullivan v. Schnitger (Wyo. 1908)
By the turn of the 20th century, state practices had, in some places, begun to change. A major case from the highest court in New York construed a recent amendment to its state constitution to find that the people had invited the state judiciary to more closely review apportionment rules in the state. (Note the framing of this blog post, and why the role of courts may differ from the practices at the time of the Founding.)
Not everywhere, of course. Consider Kidd v. McCanless (1956), the Tennessee Supreme Court’s precursor to Baker v. Carr (and why Baker was necessary, in the eyes of the court, more on that in a moment): “Thus it is apparent that the Chancellor correctly recognized, as he had already done theretofore in the opinion, that the courts have no power to compel either the legislative or the executive department to perform the duties committed exclusively to their respective domains by the fundamental law.”
This is consistent with other, ample precedents relating to elections more generally at the founding. Professor Paul Salamanca, for instance, has thoroughly chronicled the privilege of state legislatures to judge the qualifications, elections, and returns of their own members–to the exclusion of the state courts. (I’ve written about this extensively in the matter of Congress, too.)
The notion that legislatures would have the exclusive task of interpreting some provisions of the state constitution sounds absurd today. But at the Founding, the concern was that some other branch would seek to meddle with the people’s representatives, a reason these political rights were left to the political branch.
Consider, too, why Baker v. Carr in 1962 was such a significant decision in the federal courts. True, Article III provides constraints beyond what many state courts have, in terms of limiting the cases or controversies a federal court may entertain. But the Supreme Court also slogged through why the court’s equitable power, not exercised in cases like (famously) Colegrove v. Green and (infamously) Giles v. Harris, ought to be exercised in this case.
In short, we have developed a number of significant expansions of state court jurisdiction over the last century or so. Federal and state courts now think of the exercise of their equitable power in much broader ways than at the Founding. That’s not necessarily a bad thing or a wrong thing. But it’s simply a descriptive point that it’s different than the Founding.
I want to close briefly with a couple of thoughts on this narrow topic (again, as mentioned above, there may well be other reasons that speak in the respondents’ favor as one conceives of the relationship of the Legislature Thereof Clause to the state court system). First, there are a number of increasingly-confident popular pieces, often filled with adverbs like “literally” and pejoratives like “Bush-league,” to suggest a degree of confidence about the role of state courts interpreting state constitutions at the Founding. But digging into the scholarship, or the examples in the historical record, really offers no insight (that I’ve read, anyway–maybe more briefing will suggest otherwise, or maybe readers will alert me to examples I’ve missed!) about how equity in the state courts would have handled these claims.
Second, it’s worth making originalist claims of judicial review in the states with historical precision. I think the premises above are entirely right: I do think that there was a power of judicial review in the states, and a power of state constitutions that purported to bind the legislature. But the conclusion does not necessarily follow from the premises. The state courts often disclaimed the power to exercise jurisdiction, even in cases with seemingly explicit state constitutional provisions at issue. It’s a very different conception of judicial review and political rights than we have today.
*One caveat is that even a phrase like “judicial review” can, in this context, be something of an anachronism. There wasn’t really pre-enforcement judicial review of state legislative actions, even if one could raise constitutional questions once a party arrived in court on some basis, as the power of the state was brought to bear on a litigant. It’s a bit of a digression for this post, but one that probably makes the inference against state court involvement even stronger.