Textualism, Judicial Supremacy, and the Independent State Legislature Theory

33 Pages Posted: 30 Jun 2022

See all articles by Leah Litman

Leah Litman

University of Michigan Law School

Katherine Shaw

University of Pennsylvania - Carey Law School; Yeshiva University - Benjamin N. Cardozo School of Law

Date Written: June 20, 2022


This piece offers an extended critique of one aspect of the so-called “independent state legislature” theory. That theory, in brief, holds that the federal constitution gives to state legislatures, and withholds from any other state entity, the power to regulate federal elections. Proponents ground their theory in two provisions of the federal constitution: Article I’s Elections Clause, which provides that “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof,” and Article II’s Presidential Electors Clause, which provides that “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.” Proponents defend the theory as consistent with the text and structure of the constitution, as well as some nineteenth-century practice.

At base, however, the independent state legislature theory (ISLT) is best understood as primarily a claim of authority on the part of federal courts. While the doctrine purports to elevate state legislatures in the name of popular sovereignty and democracy, in fact it dramatically expands the power of the federal judiciary at the expense of both. Indeed, the ISLT, properly understood, inverts a core principle of judicial federalism and maintains that the federal constitution empowers federal courts to override the judgments of state courts, state executive-branch officials, and state voters about the meaning of state law. And, in the hands of the current Supreme Court, this assertion of interpretive supremacy imposes on the states a narrow mode of statutory interpretation—textualism—whose key justifications are largely inapplicable to the states, with their myriad and varied institutional arrangements.

The ISLT is fatally inconsistent with basic precepts of both federalism and the separation of powers. But more than that, the ISLT is a lawless power grab by the federal courts masquerading as deference to a romanticized vision of the state legislature that fails to take state institutional design choices seriously on their own terms.

Keywords: Independent State Legislature Theory, Textualism, Interpretation, Federalism, Law of Democracy, Election Law

Suggested Citation

Litman, Leah and Shaw, Katherine, Textualism, Judicial Supremacy, and the Independent State Legislature Theory (June 20, 2022). Wisconsin Law Review, No. 5, 2022, Available at SSRN: https://ssrn.com/abstract=4141535 or http://dx.doi.org/10.2139/ssrn.4141535

Leah Litman

University of Michigan Law School ( email )

625 South State Street
Ann Arbor, MI 48109-1215
United States

Katherine Shaw (Contact Author)

University of Pennsylvania - Carey Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States

Yeshiva University - Benjamin N. Cardozo School of Law ( email )

55 Fifth Ave.
New York, NY 10003
United States

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