Jack Rakove: Justice Ginsburg Got It Right (on the Meaning of “Legislature”)

The following is a guest post from historian Jack Rakove of Stanford:

As Rick Pildes (my fellow Cubs fan and Evanston IL high school grad) noted the other day, the Supreme Court’s recent ruling in the Pennsylvania voting case leaves open the possibility that the Court might soon revisit a key holding from Arizona State Legislature v. Arizona Independent Redistricting Commission. There Justice Ginsburg, writing for a majority that included Justice Kennedy, argued that the people of Arizona had the constitutional authority to delegate the legislative authority to design congressional districts to an independent commission. Chief Justice Roberts took profound umbrage at this holding. In the Appendix to his dissent, Roberts listed the seventeen clauses of the Constitution that referred to the state legislatures, all to the effect that when the Constitution says legislature, it means legislature—that is, the representative assembly that enacts the state’s laws.

As it happens, I was the main author of a historians’ amicus brief that I believe had some influence on Justice Ginsburg’s majority opinion. (Alex Keyssar, Peter Onuf, Rosemarie Zagarri, and the late Richard Beeman joined me in the brief.) In the brief, we argued, among other points, that one explicit rationale for the Times, Places and Manner Clause of Art. I, Sect. 4 was the framers’ concern that state legislatures could design congressional districts inequitably, in violation of the principle of equal representation that we now call one person, one vote. Numerous members of the founding generation asserted that a legislature should be a “mirror,” “miniature,” “portrait” or “transcript” of the larger society—an idea that originated in the English constitutional controversies of the 1640s.

Second, and more important, we also argued—from what John Marshall might have called “general principles”—that the idea of the people vesting a legislative power in another body than the legislature was fully consistent with the constitutional theory of the founding generation. In making this claim, we drew explicitly on the authority of John Locke’s Second Treatise of Government, §149. Justice Ginsburg apparently relished the quote, for she repeated it at p. 31 of her opinion. The passage is worth quoting at length. “In a Constituted Commonwealth,” Locke observed, “there can be but one Supream [sic] Power, which is the Legislative.” Yet, he continued,

the Legislative being only a Fiduciary Power to act for certain ends, there remains still in the People a Supream Power to remove or alter the Legislative, when they find the Legislative act contrary to the trust reposed in them. For all Power given with trust for the attaining an end, being limited by that end, whenever that end is manifestly neglected, or opposed, the trust must necessarily be forfeited, and the Power into the hands of those that gave it, who may place it anew where they shall think best for their safety and security [emphasis added].

This passage is interesting in at least two ways. First, when Locke speaks of “the Legislative,” the word has both institutional and substantive connotations. It may mean the institutional legislature, which would be Chief Justice Roberts’ preferred or arguably sole meaning. But it also means the power being exercised. And second, when that latter aspect is invoked, the people retain the fundamental power to reassign the power in question somewhere else.

This conception of the people’s sovereign authority was, of course, readily available to the adopters of the Constitution. If they did not have the specific knowledge of modern constitutional initiatives at hand, they nonetheless had the capacity to conceive how such initiatives could be created and deployed. (It is worth noting that Rhode Island originally rejected the Constitution by referendum.) Given the suspicion of state legislative power that was so central to Federalist thinking in the late 1780s—and which was particularly crucial to James Madison—it takes no great leap of historical speculation to imagine that the creation of independent districting commissions would seem a plausible solution to the systemic malapportionment of congressional districts.

This brief discussion is also relevant to another topic of recent interest, our unending debates about textualist and originalism. A pure textualist might follow Chief Justice Roberts and say, legislature always means legislature; no other definition would accord with the seventeen clauses he cited in the appendix to his dissent in the Arizona case. A “public meaning” originalist might have a few qualms. If he or she understood Locke’s profound impact on eighteenth-century ideas about language, the elision between legislature and legislative could pose a problem. Whereas a historical originalist like me would know that Justice Ginsburg (as always) got it right: that once one grasps the real world of constitutional debate in the Revolutionary era, the idea that the people of Arizona could exercise their popular sovereignty by creating an independent redistricting commission was perfectly consistent with the original meaning of the Constitution. (On this point, see my recent Washington Post op-ed, “The Framers of the Constitution Did Not Worry About ‘Originalism.’”

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