Interconstitutionalism in Moore v. Harper

Jason Mazzone

One form of interconstitutionalism Cem Tecimer and I explore in our recent article involves uses of the Articles of Confederation to interpret provisions of the Constitution. This form of interconstitutionalism plays an important role in Moore v. Harper, the independent state legislature case that the Supreme Court will hear tomorrow. Petitioners in the case argue that state legislatures operate independently of state constitutions and state courts when adopting and implementing rules for congressional (and presidential) elections. Petitioners assert that such legislative independence is the necessary reading of the Elections Clause of Article I, 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.” As Akhil Amar, Vik Amar and Steve Calabresi explain in their must-read amicus brief in Moore, however, Article I’s Election Clause didn’t originate with the Constitution. Instead, it repeats Article V of the Articles of Confederation, which said that “delegates [to the Confederation Congress] shall be annually appointed in such manner as the legislature of each State shall direct.” That provision was not understood to make state legislatures independent of state constitutions and state courts. State constitutions adopted or revised after this Article V provision was finalized regulated state legislatures in their selection of Confederation congressmen, and in other states legislative practices reflected a recognition that the legislature’s authority to provide for the selection of delegates was subject to state constitutional limits. At the time the Constitution’s Election Clause was ratified, state legislatures were decidedly not independent in the way the Moore petitioners assert—and nobody would have thought they were.