People ≠ Legislature

31 Pages Posted: 27 Apr 2016 Last revised: 24 May 2016

See all articles by Saikrishna Prakash

Saikrishna Prakash

University of Virginia School of Law

John Yoo

University of California at Berkeley School of Law; American Enterprise Institute; Stanford University - The Hoover Institution on War, Revolution and Peace

Date Written: April 25, 2016


Article I, Section 4 of the U.S. Constitution vests the regulation of congressional elections in “each State by the Legislature thereof.” In Arizona State Legislature v. Arizona Independent Redistricting Commission, 135 S.Ct. 2652 (2015), the Supreme Court held that the Constitution’s Elections Clause does not refer solely to an institution, distinct from the people, with the power to make laws — what common sense typically might consider a “Legislature.” Instead, the Court concluded that the Framers used “Legislature” to refer to any entity authorized to make laws, such as the people through popular initiative.

We argue that the Court has misread the text, structure, and history of the Elections Clause. A “Legislature” is an entity that makes law. But not every entity that makes laws is a legislature. When a dictator makes laws unilaterally, he or she is not a legislature. Similarly, when the people make laws, be they statutes or constitutions, they are not a legislature. Given the Clause’s actual wording, moreover, the Court should have read Article I, Section 4 to give effect not only to “State” but to “Legislature” as well. A commonly accepted rule of interpretation strongly suggests that every word in the Constitution be given meaning. Reading “Legislature” to refer only to state assemblies, and not to the peoples of the states, more cleanly fits within the structure of Article I, Section 4. It also makes better sense of the use of the word “Legislature” in other parts of the Constitution. Reading the Elections Clause as empowering only state assemblies comports best with the surrounding history of the Framing and Ratification of the Constitution.

Suggested Citation

Prakash, Saikrishna and Yoo, John, People ≠ Legislature (April 25, 2016). Harvard Journal of Law and Public Policy, Vol. 39, No. 2, 2016, Virginia Public Law and Legal Theory Research Paper No. 2016-32, UC Berkeley Public Law Research Paper No. 2770182, Available at SSRN: or

Saikrishna Prakash

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

John Yoo (Contact Author)

University of California at Berkeley School of Law ( email )

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Berkeley, CA 94720-7200
United States
510-600-3217 (Phone)
510-643-2673 (Fax)

American Enterprise Institute ( email )

1789 Massachusetts Ave., N.W.
Washington, DC 20036
United States

Stanford University - The Hoover Institution on War, Revolution and Peace ( email )

Stanford, CA 94305-6010
United States

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