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Textualism, Judicial Supremacy, and the Independent State Legislature Theory Wisconsin Law Review, No. 5, 2022 https://papers.ssrn.com/sol3/papers.cfm?abstrac

by cmurf 4y ago

Textualism, Judicial Supremacy, and the Independent State Legislature Theory Wisconsin Law Review, No. 5, 2022 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4141535 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4141535 They argue the theory is subterfuge. It actually results in enhanced power of the federal judiciary, empowered to apply textualism on state constitutions. And more articles on the subject here: https://www.brennancenter.org/our-work/research-reports/guide-recent-scholarship-independent-state-legislature-theory https://www.brennancenter.org/our-work/research-reports/guid...

cmurf 4y ago
As I read these, I think the Court must reject the concept of federal reviewability of elections presented by this theory. With respect to the Electoral Count Act of 1887, Congress needs to reinforce (a candidate receiving a plurality or majority of the votes must have assigned a plurality or majority of the Electors), and simplify it. From Lincoln's first inaugural address, he's clear that the majority in power should be restrained by constitutional checks and limitations for the purpose of making the government easy to change to represent the majority. And he makes the case that minority rule is not valid, with the rejection of majority rule leading to anarchy or despotism. https://avalon.law.yale.edu/19th_century/lincoln1.asp https://avalon.law.yale.edu/19th_century/lincoln1.asp ISLT seeks to make the minority "legally" win by fighting it in courts. And as Lincoln also said If the minority will not acquiesce, the majority must, or the Government must cease. The majority's only reason to acquiesce is the fear of what it means for the government to cease, because otherwise it's not a politically legitimate arrangement, even if it's somehow shoe horned into being a legal one.

by cmurf 4y ago

cmurf 4y ago

As I read these, I think the Court must reject the concept of federal reviewability of elections presented by this theory. With respect to the Electoral Count Act of 1887, Congress needs to reinforce (a candidate receiving a plurality or majority of the votes must have assigned a plurality or majority of the Electors), and simplify it. From Lincoln's first inaugural address, he's clear that the majority in power should be restrained by constitutional checks and limitations for the purpose of making the government easy to change to represent the majority. And he makes the case that minority rule is not valid, with the rejection of majority rule leading to anarchy or despotism. https://avalon.law.yale.edu/19th_century/lincoln1.asp https://avalon.law.yale.edu/19th_century/lincoln1.asp ISLT seeks to make the minority "legally" win by fighting it in courts. And as Lincoln also said If the minority will not acquiesce, the majority must, or the Government must cease. The majority's only reason to acquiesce is the fear of what it means for the government to cease, because otherwise it's not a politically legitimate arrangement, even if it's somehow shoe horned into being a legal one.