One Or The Other

in its decision in Moore v. Harper rejecting the state General Assembly’s congressional map is as follows

— @judgeluttig (@judgeluttig) July 2, 2022

The Elections Clause of the Constitution provides that, “[t]he Times, Places and Manner of holding Elections . . . shall be prescribed in each State . . . by the Legislature thereof.”

— @judgeluttig (@judgeluttig) July 2, 2022

“the Legislature [has] prescribed the Manner of holding Elections” to incorporate judicial review of the legislature’s elections and congressional districting decisions -- within both the letter and intendment of the Constitution.

— @judgeluttig (@judgeluttig) July 2, 2022

would entail an unconstitutional commandeering of the powers “reserved to the States respectively, or to the people” by the Tenth Amendment to the Constitution.

— @judgeluttig (@judgeluttig) July 2, 2022

would offend not only the fundamental structural command of the Tenth Amendment, but also the essential design of the Constitution of the United States.

— @judgeluttig (@judgeluttig) July 2, 2022

I don’t know the facts of  Moore v Harper, nor what issues bring it to the Supreme Court. But Judge Luttig’s analysis rests on judicial review being a part of the constitutional structure. Which, to make an almost Derridaean observation, means any conclusion that the “independent state legislature doctrine” could void what the North Carolina Supreme Court did, is using the constitution to undo the constitution. It is also (though I think Judge Luttig too smart and not venal enough to adopt/hide behind this line of purported legal analysis), hardly originalism. Because there is nothing original to judicial review in the constitution.

That’s more an ironic aside than the main argument here. My main interest is the use of judicial review to reach an unconstitutional result. Judge Luttig’s argument is that judicial review is presumed in all legislation since Marbury, because any legislature in America knows its laws are subject to court scrutiny and even approval. And this assumption is “within both the letter and the intendment of the Constitution.”

Which is a trap. If judicial review is not now understood to be “within the letter and the intendment of the Constitution,” then the courts, one and all, lose that authority. If they do have it, then the “independent legislature doctrine” has no purchase. So if the Court finds for the doctrine, it finds against its ability to find for the doctrine. If it has the ability to apply the doctrine, it can’t, without undoing its ability to apply the doctrine. Or violating the Constitution.

Being a Derridaean observation does not mean my conclusion is controlling or even within the realm of probability. It just means the Constitution is what we make of it; and has been since at least Marbury v Madison.