The following is a guest post from Travis Crum:
The Supreme Court recently heard oral argument in Moore v. Harper, which concerns the definition of “legislature” in Article I’s Elections Clause and the so-called independent state legislature theory (ISLT). A core dispute in the case is whether—and to what extent—state constitutions can restrain state legislatures’ regulation of federal elections. Accordingly, the parties and the Justices deliberated over historical examples of state legislatures regulating federal elections. However, this discussion overlooked an important historical episode concerning the analogous power of “legislatures” exercising ratification authority under Article V.
In an Essay published earlier this year, I expanded on the famous debate between Bruce Ackerman, Akhil Amar, John Harrison, and others about the lawfulness of Reconstruction. As my Essay uncovers, the Indiana state legislature considered itself unrestrained by the state constitution when it ratified the Fifteenth Amendment.
Under Indiana’s state constitution, a quorum of two-thirds of total members was required for each house. Democratic State Representative John Coffroth thus proposed that Democrats resign en masse to deny the state legislature a quorum. On March 5, 1869, thirty-eight Democratic representatives and seventeen Democratic state senators did just that, plunging the state legislature into chaos. In response, the Republican governor called for special elections to be held on April 8, 1869, to fill the seats. The Democrats promptly won back their seats and returned to Indianapolis after an agreement was reached to pass a budget and, furthermore, that a vote on the Fifteenth Amendment would not occur until the end of the session.
On May 13, 1869, the Democrats once again resigned en masse. This time, however, their plan failed. In the state senate, the presiding officer ordered the doors to be locked. Although sixteen state senators had sent letters of resignation to the governor, many of them were still present in the chamber. The senate’s presiding officer ruled that, because those senators had not submitted resignation letters to the senate, they had not yet officially resigned. A quorum was declared and the Fifteenth Amendment passed 27-1, with eleven senators marked present but not voting. That same afternoon, Speaker of the Indiana House George Buskirk determined that the house lacked a quorum due, in part, to the resignation of twenty-seven Democratic representatives.
The next day, Buskirk changed his mind following pressure from Indiana’s U.S. Senator, Oliver Morton. Buskirk decreed that a vote could proceed even though only fifty-seven out of one hundred members were present. When pressed by Coffroth to justify his ruling, Buskirk stated that Indiana’s constitution required a quorum “for legislative business of any ordinary character” but not to ratify a constitutional amendment. In other words, the ratification process was an act of federal lawmaking and was not governed by the particularities of state law. The Indiana House then voted 54-3 to ratify the Fifteenth Amendment.
As such, Indiana’s state legislature was arguably a rump legislature when it adopted the Fifteenth Amendment. Because the dispute was not litigated, there is no judicial ruling on whether Buskirk’s interpretation of the Indiana state constitution was correct, much less whether that matters for purposes of federal constitutional law.
Nevertheless, Congress approved of Indiana’s ratification. When Secretary of State Hamilton Fish listed the States that had ratified the Fifteenth Amendment, he included Indiana without any caveats. Fish’s decision vis-à-vis Indiana stands in stark contrast to his treatment of two other problematic States. Fish highlighted New York’s purported rescission, and he did not list Georgia as one of the twenty-nine ratifying States, presumably because Georgia’s status as a State was questionable after it had been put under military rule for a second time. Fish’s approval of Indiana’s ratification—and Congress’s acquiescence in it—is dispositive under the Court’s fractured decision in Coleman v. Miller,which concluded that whether a constitutional amendment has been ratified is a non-justiciable political question. Put simply, when it comes to constitutional amendments, Congress is the ultimate decision-maker on their validity.
To be clear, this history concerns the meaning of “legislature” for purposes of Article V, not the Elections Clause. And under Article V, Buskirk’s argument has some doctrinal support. In Hawke v. Smith, the Court held that referenda could not be part of the ratification process. In so holding, the Court opined that “the power to ratify a proposed amendment to the federal Constitution has its source in the federal Constitution.” However, the Court in AIRC distinguished Hawke on the grounds that Article V’s ratification authority was distinct from the enactment of ordinary state laws, including redistricting statutes. Thus, the Court has expressly rejected the claim that “legislature” must mean the same thing across the Constitution.
But if you are an intra-textualist, then this history provides an important piece of evidence that state constitutional provisions do not bind state legislatures when they act pursuant to the federal constitution. This history could become a window into the future if a maximalist ISLT were to prevail. This begs the question: is that a future that we want to live in?
The Fifteenth Amendment emerged from the ashes of the Civil War and at a time when large parts of the South were still under military occupation. It took extraordinary measures to ensure that it was ratified and that Black men would be enfranchised nationwide. Under a maximalist ISLT, these extraordinary measures could become quite ordinary in our modern age of political polarization. Although petitioners claim to support procedural limits on state legislative authority, the line between procedure and substance is notoriously hard to draw and Hawke could be invoked to obliterate it entirely in a future case.
In my view, Justice Jackson got it right when she said that state legislatures are “creatures of state constitutional law.” One does not simply find state legislatures wandering around in the wild and therefore they are bound by their creators. If the Court is unwilling to recognize this fact, it risks being drawn in to intense debates over legislative authority and encouraging even more brazen behavior by state legislatures.