"Legislature": I Do Not Think That Word Means What You (And Everyone Else) Think It Means

In the battle of the English language versus the Supreme Court, the English language just took a big hit. In the wake of the kind-hearted but legally bankrupt decision in Obergefell (which I discuss in depth here), the Supreme Court ruled in Arizona State Legislature v. Arizona Independent Redistricting Commission that it is Constitutional for an independent commission to draw the district boundaries for Arizona's election of members to the US House of Representatives. In the interest of full disclosure, as was the case in Obergefell, I LOVE this result from a policy perspective. Gerrymandering is awful and undemocratic. Far too many "safe districts" have been created which lead to a large number of idiots being sent to Washington whose jobs do not depend on saying rational or intelligent things or passing rational or intelligent laws. However, once again, the Supreme Court seems to be forgetting its job. The Court is not supposed to tell us what the law SHOULD be. Rather, the Court's job is to tell us what the law IS.

I'm becoming a huge fan of Justice Roberts, so once again I will let his dissenting opinion in Arizona do the talking, and I will provide explanation, elaboration, and commentary. 

Just over a century ago, Arizona became the second State in the Union to ratify the Seventeenth Amendment. That Amendment transferred power to choose United States Senators from “the Legislature” of each State, Art. I, §3, to “the people thereof.” The Amendment resulted from an arduous, decades-long campaign in which reformers across the country worked hard to garner approval from Congress and three-quarters of the States.

What chumps! Didn’t they realize that all they had to do was interpret the constitutional term “the Legislature” to mean “the people”? The Court today performs just such a magic trick with the Elections Clause. Art. I, §4. That Clause vests congressional redistricting authority in “the Legislature” of each State. An Arizona ballot initiative transferred that authority from “the Legislature” to an “Independent Redistricting Commission.” The majority approves this deliberate constitutional evasion by doing what the proponents of the Seventeenth Amendment dared not: revising “the Legislature” to mean “the people.”

Wait. What?! There's no way this case is that simple and silly. Right? Wrong. This case is that simple and silly. The majority opinion in this case, written by Justice Ginsburg, argues that the word "legislature" is not clear enough, and that in this context it can include the people of the state of Arizona (who created this redistricting commission through ballot initiative). This is too much. Again, I hate gerrymandering, but you cannot (and maintain any judicial integrity) just make up definitions of words simply to get to the political end that you desire. Well, if you are the majority in this case, you can.

The majority begins by discussing policy. I begin with the Constitution. The Elections Clause provides: “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 Regulations, except as to the Places of chusing Senators.” Art. I, §4, cl. 1.

So there you have it. Plain as day. If you go up to a person on the street right now and ask what the legislature is, you're actually likely to get a blank stare because Americans tend to be idiots. However, if you only look at the set of people who give a coherent response (like they know it has something to do with politics) I can promise you not one person is going to say "the legislature is all of the people in the state."

The relevant question in this case is how to define “the Legislature” under the Elections Clause. The majority opinion does not seriously turn to that question until page 24, and even then it fails to provide a coherent answer. The Court seems to conclude, based largely on its understanding of the “history and purpose” of the Elections Clause, ante, at 24, that “the Legislature” encompasses any entity in a State that exercises legislative power. That circular definition lacks any basis in the text of the Constitution or any other relevant legal source.

Justice Ginsburg is essentially arguing that because an entity exercised legislative power, it is a legislature. How? What? Huh? Under that reasoning, if the Supreme Court of Arizona gathers together and decides to write a law lowering the drinking age in Arizona to 3 (just for fun), and then they vote on the law and declare it passed, when someone inevitably challenges the lack of authority vested in the court to do such a thing, they only have to argue, "well, we exercised a legislative function," and now they are a legislature. This is so goofy.

The majority’s textual analysis consists, in its entirety, of one paragraph citing founding era dictionaries. The majority points to various dictionaries that follow Samuel Johnson’s definition of “legislature” as the “power that makes laws.” Ibid. (internal quotation marks omitted).The notion that this definition corresponds to the entire population of a State is strained to begin with, and largely discredited by the majority’s own admission that “[d]irect lawmaking by the people was virtually unknown when the Constitution of 1787 was drafted.” 

 It's also worth noting at this point that the Founders HATED the idea of direct democracy. Our entire system of government is designed to limit the power of the people because men like James Madison considered the average person to be too stupid and prone to "passions" to make intelligent governing choices. We didn't directly elect Senators prior to 1913 for EXACTLY that reason. The idea was, "well even if the idiot citizenry votes in a bunch of morons (see Bachmann, Michele, see also Gohmert, Louie), the States can at least fill up the Senate with smart people and provide a check on the clown car." (As a side note, we now directly elect Senators, and we have scholars like Jim Inhofe tossing snowballs in the Senate chamber as evidence that climate change is a hoax, so it would appear that Madison and the boys were on to something.) In any event, there is absolutely no way possible to conceive that when they wrote "Legislature" into the Constitution that one of the possible meanings was, "the people of the State (who we don't trust as far as we can throw them)."

The Federalist Papers are replete with references to “legislatures” that can only be understood as referring to representative institutions. E.g., The Federalist No. 27, pp. 174–175 (C. Rossiter ed.1961) (A. Hamilton) (describing “the State legislatures” as“select bodies of men”); id., No. 60, at 368 (contrasting “the State legislatures” with “the people”). Noah Webster’s heralded American Dictionary of the English Language defines “legislature” as “[t]he body of men in a state or kingdom, invested with power to make and repeal laws.”2 An American Dictionary of the English Language (1828). It continues, “The legislatures of most of the states in America . . . consist of two houses or branches.”

Yea. I don't know if Justice Ginsberg is easily embarrassed, but this really ought to do the trick.

I could go on, but the Court has said this before. As we put it nearly a century ago, “Legislature” was “not a term of uncertain meaning when incorporated into the Constitution.”

I'll go one better. "Legislature" is not a term of uncertain meaning EVER. Everybody who is educated enough to have an opinion we should value knows what that word means. It's actually difficult to come up with many words whose meaning is more certain than that of "legislature."

The Commission had no answer to this point. See Tr. of Oral Arg. 42 (JUSTICE ALITO: “Is there any other provision where legislature means anything other than the conventional meaning?” Appellee: “I don’t know the answer to that question.”). 

See? I told you. As a side note, how the hell are you, as an attorney arguing this case, not prepared for that question. You have to know someone is going to ask you that. At least make up something.

The people of Arizona have concerns about the process of congressional redistricting in their State. For better or worse, the Elections Clause of the Constitution does not allow them to address those concerns by displacing their legislature. But it does allow them to seek relief from Congress, which can make or alter the regulations prescribed by the legislature. And the Constitution gives them another means of change. They can follow the leadof the reformers who won passage of the Seventeenth Amendment. Indeed, several constitutional amendments over the past century have involved modifications of theelectoral process. Amdts. 19, 22, 24, 26. Unfortunately,today’s decision will only discourage this democratic method of change. Why go through the hassle of writing a new provision into the Constitution when it is so mucheasier to write an old one out? I respectfully dissent.

I close with this portion of the opinion because many people will ask of this case as they did in Obergefell, "who cares?". The result is a good one. Arizona will be less gerrymandered, and should we not just celebrate that.

No, we should not. And the reason we should not is because when an educated and respected justice such as Justice Ginsberg writes an opinion that is based on an apparent misunderstanding of the word "legislature" that would result in lost points on any high school government test covering the subject, it creates a cynicism about the Court. Assuming we aren't putting people on our highest court who are just stupid, it leaves the impression with people that the Court is really just another legislative branch staffed by politicians who are unelected and imposing their own policy views on the country. Free societies must be based on the rule of law, and this charade is not the rule of law. It's the rule of five justices who happen to be liberal (ish) and do not want the Arizona Republican Party to go back to mangling the congressional districts in that state. At some point, people are going to get fed up and just ignore the Court. The Court's authority is like the value of a fiat currency. It only exists if everyone agrees that it exists. The Court must stop this political nonsense and interpret the law as it is, not as some of the justices want it to be.