Hayward Smith has posted this detailed article on the independent state legislature doctrine, which also responds to arguments defending certain versions of the doctrine. Back in 2001, when Hayward was a student of mine at NYU, he published a law review note on this issue. Now in private practice, Hayward returned to the issue and dug in more deeply into the historical evidence and arguments concerning whether the Constitution, properly understood, contains such a doctrine.

Here is the abstract:

In hopes of legitimizing the independent state legislature doctrine, its proponents have recently made two claims with respect to history, which this article refers to as the Substance/Procedure Thesis and the Prevailing View Thesis. The former admits that the original understanding was that state “legislatures” promulgating election law pursuant to the Elector Appointment and Elections Clauses are required to comply with state constitutionally-mandated “procedural” lawmaking requirements (such as a potential gubernatorial veto), but asserts that they were otherwise understood to be independent of “substantive” state constitutional restraints. The latter asserts that the independent state legislature doctrine was the “prevailing view” during the nineteenth century (before it was abandoned in the twentieth century).

This article debunks the Substance/Procedure Thesis. Previously unreviewed historical evidence, including that arising from a review of the 1776 drafting history of the predecessor language of Article V of the Articles of Confederation, confirms that the founding generation understood that “legislatures” would be subject to substantive state constitutional restrictions as well as constitutionally-mandated lawmaking procedures. The evidence shows that the framers of the Elector Appointment and Elections Clauses — including in particular John Dickinson and James Madison — expected that state constitutions would impose substantive limitations on “legislatures.” The evidence also demonstrates that the Framers’ subjective expectations were shared by other members of the founding generation. State constitutions adopted in the years immediately following the Founding contained substantive restrictions on election law that, although they did not explicitly refer to federal elections (as did the Delaware constitution of 1792), were understood to apply to all elections, including federal elections.

This article also debunks the Prevailing View Thesis. It cannot be sustained on any objective view of the evidence. A review of every state constitution adopted during the 1800s reveals that both explicit and non-explicit limitations on “legislatures” were widespread before, during, and after the Civil War. On the other hand, apart from the House of Representatives contested election case of Baldwin v. Trowbridge (1866), the doctrine was little more than a lawyer argument episodically invoked in House contested election cases or state courts, without prevailing in either forum. Suggestions to the contrary are based on mischaracterizations of the cases.

Finally, this article argues that the episodic invocations of the doctrine that did occur in the nineteenth century are irrelevant under any form of argument from history relevant to constitutional interpretation. In particular, Baldwin v. Trowbridge should not be treated as if it were judicial precedent — and not only because it has been overtaken by subsequent Supreme Court decisions. In deciding contested election cases in the late nineteenth century, and particularly in the 1860s, the House of Representatives was acting in a demonstrably non-judicial manner. Courts should not afford its decisions respect under the doctrine of stare decisis.