Elbridge Gerry and Ruth Bader Ginsburg on our federal system

This is the first of two posts about my forthcoming article, Legislative Delegations and the Elections Clause, Florida State University Law Review (forthcoming), available on SSRN. Comments, critiques, and feedback are welcome.

What were the Founding Fathers thinking about? They were thinking about who had a legislative function. There was no such thing in those days as the initiative or referendum, those developed later, but those are lawmaking functions, so I think it was entirely reasonable to read the Constitution to accommodate whatever means of lawmaking the state had adopted, rather than say, "No, the only way you could make law that counts for this purpose is by the legislature thereof." We can’t know for sure because we have no way of convening with the Founding Fathers, but I think if they knew of the existence of the people’s vote through the initiative or referenda, they would have said, "That’s lawmaking." What we had in mind is who makes the law for the state.

Ruth Bader Ginsburg, conversation at Duke University School of Law, 2015

The evils we experience flow from the excess of democracy. The people do not want virtue, but are the dupes of pretended patriots.

Elbridge Gerry, comments at the federal constitutional convention, 1787

It is hard to overstate how inaccurate Justice Ginsburg's comments are. Men like Mr. Gerry aggressively fought any element of the Constitution that might veer too close to direct democracy. It's the reason so many elements of the Founder's Constitution, from the state legislature's power to elect Senators to the entire Electoral College (direct election, Mr. Gerry remarked, would have been "radically vicious"), often removed elections from the direct control of the people.

Constitutional amendments and state practice have made federal elections more directly democratic, from the direct election of Senators to the common practice of popular election of presidential electors pledged to support a particular candidate. But the Constitution continues to allocate responsible to actors other than "the people."

Justice Ginsburg, of course, was discussing Arizona State Legislature v. Arizona Independent Redistricting Commission, and the Court's opinion (PDF) handed down this summer. The Arizona state legislature challenged the existence of an independent redistricting commission, which had been created by ballot initiative and empowered to draw congressional districts, a task formerly reserved to the state legislature.

The Elections Clause (or the "Times, Places and Manner" Clause) provides, "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof . . . ." The Arizona state legislature, understandably, thought that "legislature" meant "legislature," not "lawmaking apparatus."

Justice Ginsburg's off-the-cuff remarks were not the heart of the Court's judicial opinion, but some of the comments in the opinion draw quite close:

While attention focused on potential abuses by state-level politicians, and the consequent need for congressional oversight, the legislative processes by which the States could exercise their initiating role in regulating congres­sional elections occasioned no debate. That is hardly surprising. Recall that when the Constitution was com­posed in Philadelphia and later ratified, the people’s legis­lative prerogatives—the initiative and the referendum—were not yet in our democracy’s arsenal.

Apart from a rather dubious argument from silence, direct democracy did exist at the founding, even if the initiative and the referendum did not. Mr. Gerry's remarks certainly highlight that. And the people proposing or ratifying constitutions at conventions were an important and powerful device known at the time of the founding.

And within a generation of the founding, Justice Joseph Story challenged the notion that the people could alter federal election regulations. During Massachuetts's constitutional convention of 1820, Justice Story spoke out, as a citizen, to challenge the notion that the people could amend election provisions in the state constitution. That task, he emphasized, was reserved to the state legislature.

Justice Story's view did not prevail, for the people of Massachusetts did include provisions in their constitution about elections. But Congress has repeatedly been confronted with the question about whether an election was valid because it occurred pursuant to a regulation promulgated by some body other than the legislature of the state. It has a fairly extensive set of cases where it examines the word "legislature," discussions almost (but not wholly) absent from the Court's opinion.

Tomorrow, I'll summarize a few of the highlights from historical discussions, with a brief mention of direct democracy, and a more extensive analysis of delegating the legislature's power to another entity.