Here's Where It Gets Interesting - Independent State Legislature Theory Explained with Akhil Reed Amar, Part 2

Episode Date: September 9, 2022

On this episode of Here's Where It Gets Interesting, Sharon continues her conversation with constitutional law professor Akhil Reed Amar. They shift gears a little from the U.S. Constitution to a discussion about the controversy around Independent State Legislature Theory. You may have heard it talked about in connection with the upcoming supreme court case, Moore vs. Harper, but the nuances can be tricky to understand. Amar explains the obscurities of the theory and why state legislatures should not be considered independent from the state constitutions that gave them birth. Hosted on Acast. See acast.com/privacy for more information. To learn more about listener data and our privacy practices visit: https://www.audacyinc.com/privacy-policy Learn more about your ad choices. Visit https://podcastchoices.com/adchoices

Hello, friends. Welcome. Delighted to have you with me here today. And this conversation is a continuation from last episode in which I'm chatting with one of America's best known constitutional law scholars, Akhil Reed Amar. And today's conversation is focused on a very important topic the Supreme Court is going to be hearing in its upcoming term. So let's dive in, because here's where it gets interesting. I'm Sharon McMahon, and welcome to the Sharon Says So podcast. I would love to talk for just a moment about an upcoming Supreme Court case that is going to be heard in the new term. The new term will begin in October. I don't believe it has a date set yet for oral arguments, but that case is Moore

versus Harper. And it's about something you alluded to earlier about independent state legislature theory. And this is something that is of concern to me. If Americans are concerned about democracy as a whole, I think this is something that should be of interest to them as well. And I wonder, first of all, if you can touch on what that is. And also, what are your viewpoints and thoughts on this case? Right. My personal views do not always track my constitutional views, but on this one, they do currently, but I know the world could change and I'm going to stick to my constitutional views, even if the party power configuration flips, as it easily could flip. In a nutshell, here's the issue. The current case is about congressional districts, but the real thing to keep your eye on is about the electoral college. There are two different provisions in the Constitution. One's about congressional elections in Article I. One is about presidential elections in Article II.

And the case right now is actually about congressional elections, but the real thing to be worried about is presidential elections. So that's how I'm going to actually introduce the issue to our audience. So there are about seven or eight states, six, seven, eight states that are presidentially blue, that went for Biden, but that have red state legislatures. Biden, but that have red state legislatures. And the states that I'm talking about are places like Wisconsin, Michigan, Georgia, Alabama, Nevada, New Hampshire, Pennsylvania, maybe Virginia. That's what we're talking about, basically. Now, these are states in which if you let people vote for president, one person, one vote, they might very well vote for a Democrat. Republicans seeing that are going to be tempted to actually say, oh, we don't want the people in our state voting for the president. So we're going to try to change the

rules to give ourselves more of a role in the presidential election process. And we're going to do it on a theory that the constitution, they say article two, but also article one about congressional elections. But article two gives us the state legislature, the power to decide basically how electors are picked, presidential electors in our state. And here are the things that they are going to want to try to do in some of these states. And you're seeing Trump people on the ballot in some of these states, in Wisconsin, in Arizona right now, Michigan, Pennsylvania. I'm not making this up. So at the extreme, here's what they're going to want to do. Here's what they'll say. Elections are frauds. Too many

illegals. This is how they'll talk. Illegals are voting. They're carting them in from Mexico. And so this is all fraud. It's all stolen. Because it's a fraud, I don't believe this, but this is what they're going to say. We, the state legislature, are going to actually pick presidential electors ourselves. And the founders let us do that. This is the problem. The founding is just antiquarian and all the rest. Why are we stuck with rules from 1789? My counter argument is actually, yes, the founders allowed state legislatures to pick electors themselves. That is true. And many states did that early on. By 1828, only one state is doing it, South Carolina picking the electors itself by the state legislature. And that has, for reasons having to do with slavery.

And then after that, South Carolina is letting the voters pick. But you can say, well, Akhil, you just admitted state legislatures can do this. Why can't we go? It's true we haven't done it in a long time, but why can't we go back? Here's why. Because in a whole bunch of states, the state constitution, remember state constitutions we were talking about? The state constitutions are best read to say, oh, in Colorado, the people of Colorado pick the presidential electors. The people of Pennsylvania, according to the Pennsylvania Constitution, pick the presidential electors. The people of Michigan or Arizona, the state constitutions, they may not say it in so many words, but that's what the state constitutions are best read to say, according to state Supreme Courts,

which are the last word on the meaning of state constitutions. And many of these state courts are elected, but they're elected statewide and there's less gerrymandering. And if these are kind of bluish states, the legislature might be red for some reasons, but the governors, the presidential picks, and the state Supreme Court might be a little bit more blue. So now we come to the controversy. Can the state legislature just in a free-floating way says, we don't care about our state constitutions.

We don't care about what the state Supreme Court says. We're independent. The U.S. Constitution says we get to pick. And they say, no. The U.S. Constitution says state legislatures get to pick. But state legislatures are creatures of state constitutions. And if you study the founding, oh my gosh, state constitutions are what were important and state legislatures are just creatures of that. And the state constitution can restrict the legislature in all sorts of ways.

Here are three other things the state legislature will try to do. At the extreme, they're going to say, we're going to pick the electors. And if they can't do that, here's going to be their fallback. Okay, we won't pick the electors ourselves, but we are going to judge who really will put it to the voters. But since there's a lot of fraud and all the rest, we can't trust the ordinary state accounting officials. We can't trust judges. We, the state legislature, are going to tell you who really won. The problem is state constitutions say, no, state legislatures aren't the judges. State judges are the judges. And they're going to say, oh, but the US constitution makes us the independent state legislature. No, you're a creature of the state constitution. Okay. So then the third thing they're going to say,

okay, okay, we're not going to pick the electors ourselves, and we're not going to pretend to judge the election. But if it's really, really close, then we're going to jump back in after the election, after election day, and we're going to call it a failed election, and we're going to actually decide whom we really want to win. Okay? And once again, the question is, can you do that under state constitutions? And there's actually a federal law, the Electoral Count Act that's being renegotiated in Washington, D.C. now about all of that. Here's the fourth thing they're going to try to do.

OK, OK, OK. We can't pick the presidential electors ourselves. We can't judge who really won. We can't jump back in after the election has already happened. No, we count and we recount carefully. And if happened. No, we recount carefully. And if we're necessary, we recount carefully, but that's how we do it. But they're going to say, oh, let's actually move away from winner take all, which is how 48 states do it. And we're going to portion our electoral votes in sort of a different way. And they might do it for partisan reasons. I'm not going to go into all the details. But once again, state constitutions, best read, might be read to say, no, the state constitution doesn't let you do this. So there are at least four pathways

by which for 2024, I think at least one or more of these swingish states are going to perhaps try to pass a law in a Republican state legislature restricting the rights of ordinary voters. Put differently, there were seven states, I believe, that voted for Biden that have Republican legislatures. Biden that have Republican legislatures. Contrary wise, there is no state in America that voted for Trump that has a Democratic state legislature. And my big point as an historian, and I published an article with my brother, the Dean of the Illinois College of Law, we published it together. The big historical point is I told you, audience members, just how big a deal the United States Constitution was in 1787-1888, putting it to a vote.

I want to end, if you let me, by reading a paragraph from my most recent book just to tell you just how important the state constitutions were in 1776. That's what the American Revolution was all about initially, state constitutions, and they are more important than the state legislatures. State legislatures are merely creatures of state constitutions. And just so we're clear, I wrote the words of this book long before the controversy about independent state legislatures erupted. So you can be sure, audience members, this is what I really believe, and I didn't reverse engineer all this just for the current litigation. The current litigation, to repeat, Moore v. Harper, Sharon, is, as you said,

about congressional districting, but that the same large issues at stake in this case about state legislatures and congressional districting are also going to be involved in state legislatures and presidential elections. I'm Jenna Fisher. And I'm Angela Kinsey. We are best friends. And together we have the podcast Office Ladies, where we rewatched every single episode of The Office with insane behind-the-scenes stories, hilarious guests, and lots of laughs. Guess who's sitting next to me? Steve! It's my girl in the studio! Every Wednesday, we'll be sharing even more exclusive stories from The Office and our friendship with brand-new guests,

and we'll be digging into our mailbag to answer your questions and comments. So join us for brand new Office Ladies 6.0 episodes every Wednesday. Plus, on Mondays, we are taking a second drink. You can revisit all the Office Ladies rewatch episodes every Monday with new bonus tidbits before every episode. Well, we can't wait to see you there. Follow and listen to Office Ladies on the free Odyssey app and wherever you get your podcasts. One of the follow-up questions I have about Moore v. Harper is, what is your prognostication? What is your viewpoint of how the Supreme Court is going to decide that case? Jokesters have said that about our country, which I so love, that Americans can usually be counted on doing the right thing after they've tried everything else. Now, since I think one answer is actually the right answer, and I don't think our judges are

hacks and tools and Pauls, I actually respect them. I respect them across the board. I'm cautiously optimistic that they'll do the right thing. Will every single one of them vote for my point of view? Probably not, but I only need five. And I'm cautiously optimistic that very candidly, I start with three. I actually start with four. I think the three liberals and John Roberts, I think are already on board for various reasons I'm not going to go into technically. But I think the right thing is to understand that state legislatures are creatures of state constitutions and state courts are the definitive interpreters, state supreme courts are the definitive interpreters of state constitutions, that ISL, the idea that state legislatures are independent,

ISL stands for independent state legislature. No, that's actually not what the constitution says. That's not the historical backdrop. Now, here's the point. You won't know this when you just read the words of the Constitution, because it's not so clear. You'll know this only if you understand the historical background, which is what my books are all about, telling you what actually was really the big idea in 1776, in 1787, 88. And I apologize, the books are kind of long, and I'm not writing them about for this current event or that one. I'm writing them because in 50 years, this is going to be the

resource in 100 years. So I better get it right for all time. And the politics are going to change. There's going to be a moment when we actually have democratic state legislatures who are going to want to do things. And my position is still going to be the same. No, you are not actually independent of the state constitution that gave you birth. So here's what I say in the book. For all their anxiety, Americans thrilled at the prospect before them. We have every opportunity, wrote Thomas Paine in the stirring closing passage of Common Sense, have every opportunity, wrote Thomas Paine in the stirring closing passage of Common Sense, to form the noblest, purest constitution on the face of the earth. We have it in our power to begin the world over again. A situation similar to the present hath not happened since the days of

Noah. John Adams, usually far less utopian than Paine, also waxed rhapsodic. You and I, he wrote a friend in a meditation that soon became a widely read pamphlet, you and I have been sent into life at a time when the greatest lawgivers of antiquity would have wished to have lived. How few of the human race have ever enjoyed an opportunity of making an election of government for themselves or their children? When, before the present era, had three millions of people had a full and fair opportunity to form and establish the wisest and happiest government that human wisdom can contrive? Okay.

So that's what he's writing to other men. But here's what he writes to Abigail, his beloved Abigail, on May 17, 1776, right before the Declaration of Independence. Here's what he says. He says, well, it would be nice to have a confederation and alliances, but that's not what this is really about. Here's what it's about. A whole government of our own choice, managed by persons whom we love, revere, and can confide in. That has charms which men will fight.

And he means the government of Massachusetts, the state constitution, which he will later draft, you see. So, and then here's my paragraph. To find the true meaning of American independence, circa 1776, we must look beyond the Continental Congress. We'll not find all the answers to the meaning of 1776 in documents that fully emerged only later, the Articles of Confederation, the Northwest Ordinance, the Ultimate Federal Constitution, which are from 1781, 87, 88. Here's where I say, no. If we are to understand what all the shouting was about in 1776, what the main point of the conversation was, we must first ponder the state constitutions

that sprouted like so many daffodils up and down the continent in the springtime of the new world. They are so darn proud of these state constitutions that they're originating. You can't think about state legislatures in isolation. If you just read the words, it might seem that way. No, they are products of state constitutions and the founders were ridiculously proud of state constitutions. And that's what you will only understand when you read a history book about the constitution that tells you the backdrop. And again, I wrote all this way before the ISL debate was even on the horizon. I love that. I also love this idea that we can understand when we learn more about history, that legislatures, as you say, they're creatures, but they're creations of the state constitution.

They only exist because the state constitution created them to be as they are. Yes. Yes. And the state constitutions come more authentically from the people, just as the US Constitution came more authentically from the people. And that was my earlier point about the special electorate that generated the Constitution. Back to the preamble, we the people are doing this. So federal constitution trumps Congress, state constitutions,umps state legislatures. Simple point. Do you think that as citizens who are concerned about democracy, who are concerned about ISL, is there something we can do? Should we be pressuring the person bringing the lawsuit to Tim Moore?

Should we be pressuring Tim Moore to drop the lawsuit so that the Supreme Court doesn't bring this up? No, I don't like the idea of pressuring. I like the idea of persuading. And ultimately, my brother and I are going to write an amicus brief to the court and say, take a look at this, take a look at that. Here's our evidence. I don't like actually people marching on at justices' homes and having guns near their houses. No, no, no, this is not what we do. We make arguments. We present evidence. And I hope, you know, if our argument is the better one, that judges will see that.

I'm very old-fashioned that way. What about writing letters to Tim Moore, the Speaker of the House that is bringing this lawsuit to the Supreme Court? Oh, sure. That's permissible, although I think he answers basically to North Carolinians and not to anyone else. And so, he might say of you or me, like, what business is it of yours, perhaps? But the people of North Carolina should be saying, hey, when you are downgrading the Constitution of North Carolina, you're disrespecting us, the people of North Carolina, who are the ultimate authors of the state constitution of which you are a creature, a creation.

Yes. Should they be asking him, if people are listening to this from North Carolina, should they professionally and politely, but persuasively be writing or calling Tim Moore to ask him to drop his lawsuit? Is that a good idea? It's permissible. I'm persuaded that I'm correct, but I wouldn't want you to do that unless you actually read the article. So the first thing I'd want you to do, and it's free and online.

If you just put my name in and ISL, you can read the article and then you, my fellow citizens. And the article is written in a slightly more legalistic way. I apologize because that was designed to persuade the justices, but it's still, it's not brain surgery. It's not heart surgery. No, I most of all just want them to educate themselves about this and reconnect with the constitution. That's what I would most of all want just want them to educate themselves about this and reconnect with the Constitution. That's what I would most of all want them to do. That's a bigger ask than just writing a letter, because it's going to take you 15 minutes to write the letter. It'd take you an hour to read the article. I've eaten up so much of your time, but I would love to ask you one last question,

up so much of your time, but I would love to ask you one last question, which is what can the average American do? Just an ordinary citizen, a teacher, a nurse, normal average American do to make America better? How can we have a better functioning Congress? How can we have a government that is more of the people? What can we as normal people do? Even though it's painful, read newspapers and news outlets from the other point of view. I try to do that every day. It's amazing to me. It's not just that they're disagreeing about the same case. Often, they're not even covering the same stories because what one side thinks is news, the other side thinks is fake news or something. But if you're an American, I think, and I don't like reading stuff that I disagree with, but there's a freedom of speech, but there's also

duty to listen. So you're a newspaper person from way back. I say the constitution comes about because of newspapers. So try to online, if you're a Fox person, check out the New York Times or vice versa. Relatedly in your life, and it's not fun to do, but try to find someone that you actually genuinely like and that you know is of the other point of view. And it's going to be hard and painful, but try to actually have some regular conversations with them, even about politics. It may strain the friendship a little bit. This is like the uncomfortable Thanksgiving conversations and all the rest, but we have to come together as

Americans. And that means that those of us like I'm on the blue side, but I promise you, I have lots of red friends and we talk a lot and I read what they've written and I think about, and I try to hear them and we have to do that vice versa. That's what we can do. Then my bigger ask is, oh, I want you to read the book because if we all have that in common, I'm actually telling you the story of America, then we can be acting off of a common factual basis for our different decisions about, for example, who we should, with the drafting committee, whom we should pick for our next quarterback. Tell everybody who's listening today where they can find your work. Where can they go to hear more from you, read more from you? your work? Where can they go to hear more from you, read more from you? Tell us all the things.

Two things. One, of course, I don't want you to ever move off of this podcast, but I've got one with my friend, Andy Lipka, that you might want to listen to in addition. It's called Amarica's Constitution. It's a fun, but if you just Google Akhil Amar podcast, you'll find it. And there are a gazillion ways of experiencing it. Spotify, Stitcher, Apple. We have an associated website. It's akhilamar.com. I've got lots of free material up every week, show notes and free articles you can download. So there's the podcast and the website. But truthfully, I'm a greedy, greedy person. I want more of your time than that. I'd love for you to actually experience a book. The one that is closest to my heart, the most recent one, is the first of three. It tells the epic story of America.

It's called The Words That Made Us, America's Constitutional Conversation, 1760 to 1840. And it tells the story of how we became a we, how America became America. Us is a pun on the US, the words that made us. How Americans become Americans by talking to each other, through conversation, through newspapers. That's how we come together. This is the first of three volumes. So it takes you through the American Revolution in 1776 and the first round of state constitutions, and then the federal constitution and the Bill of Rights and the Washington administration and a peaceful transition of power or mainly peaceful to Thomas Jefferson, all the way through John Marshall and the early court to Andrew Jackson to 1840. Volume two will be the words

that made us equal, America's Constitutional Conversation, 1840 to 1920, all about Lincoln's generation and Elizabeth Cady Stanton and Susan B. Anthony. And it'll end with women getting the vote everywhere. I haven't finished that one yet. Volume three will be the words that made us modern America's constitutional conversation, 1920 to 2000. So just like Alex Haley writes Roots, which is this intergenerational saga about American history from a one African American family point of view, you know, from Kente Kente to Haley. This is going to tell the story of all of us as Americans from 1760, eventually to 2000, from the revolution to Reagan. But volume one is already out. You can get it on Amazon. It's long, I warn you, but readers seem to like it and it tells the story of America. It is amazing. It truly is an amazing work. And

I cannot believe when I have it up here, when I'm like, there are two more? Good for you. If I live that long, let us pray. It's like the person who's writing Game of Thrones takes him on average seven years to write one book and he's in his 70s and still has two more to write. And people are like, what? Yes, I'm only 63. I'm about to turn 64. But thank you so much for giving me a chance to talk about America. This is truly a pleasure.

I would love to do this again anytime. Thank you so much. Okay. Thank you so much for listening to the Sharon Says So podcast. I am truly grateful for you. And I'm wondering if you could do me a quick favor. Would you be willing to follow or subscribe to this podcast or maybe leave me a rating or a review?

Or if you're feeling extra generous, would you share this episode on your Instagram stories or with a friend? All of those things help podcasters out so much. This podcast was written and researched by Sharon McMahon and Heather Jackson. It was produced by Heather Jackson, edited and mixed by our audio producer Jenny Snyder, and hosted by me, Sharon McMahon. I'll see you next time.