Illinois Law dean Vikram David Amar continues his discussion of why the “Independent State Legislature” theory is incorrect and counter to the original understanding of the Constitution. Dean Amar points to four key errors the Petitioners in Moore v. Harper make in their filings with the Supreme Court and argues that some of their omissions demonstrate just how non-originalist their theory really is.
Illinois Law dean Vikram David Amar explains what Moore v. Harper, the case the U.S. Supreme Court will hear in December involving the so-called “Independent State Legislature” (ISL) theory, tells us about principled originalism. Specifically, Dean Amar argues that to embrace ISL theory would mean flouting George Washington, the first Congress, and the makers of all the early post-ratification state constitutions (to say nothing of the Americans who adopted the Constitution against the backdrop of the Articles of Confederation’s apparent meaning)—indeed the very antithesis of originalism.
In light of the Supreme Court’s decision to grant review of a North Carolina partisan gerrymandering dispute involving the Independent State Legislature (ISL) theory, Illinois Law dean Vikram David Amar offers yet another reason that the theory is critically flawed. Although Dean Amar has described in numerous publications why ISL theory is illogical and atextual, he newly observes that the Constitution uses another term—“Congress”—to refer at times to the legislative body and other times to the lawmaking process, inclusive of presidential involvement.
In anticipation of the U.S. Supreme Court likely deciding soon to review a case presenting the question of the legitimacy of the “Independent State Legislature” (ISL), Illinois Law dean Vikram David Amar explains why the theory necessarily fails unless its proponents make up the meaning of Article II of the Constitution without regard to its words or historical context. Dean Amar argues that the notion of ISL does not work for Article I or Article II, but it certainly does not work for Article II under the textual approach employed by its proponents.