ANOTHER CONSTITUTIONAL REWRITE: This time it was a Supreme Court rewrite of the Elections Clause, in the Arizona State Legislature vs. Arizona Independent Redistricting Commission decision. While the Court majority upheld the state legislature’s standing to sue, it also upheld the validity of the ballot measure that transferred the power to draw legislative districts from the state legislature to an independent commission. According to the Wall Street Journal editorial:
In 2000 Arizona voters approved a ballot measure to amend the state constitution and give a five-member commission the power to draw the map for Congressional districts. The idea was to take redistricting away from politicians who invariably use it for partisan advantage.
Good intention, but the Elections Clause says the “times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof.” And the legislature didn’t sanction the referendum.
Justice Ruth Bader Ginsburg nonetheless writes for the liberals and Anthony Kennedythat when the Framers wrote the word “legislature” they didn’t mean “legislature.” They meant it loosely because “the people themselves are the originating source of all the powers of government.”
The Founders weren’t perfect but they were more precise wordsmiths than the average Supreme Court Justice. For example, when they meant “the people,” they wrote “the people.” So when they wrote “the legislature,” confidence is high that they meant “the legislature.”
It’s been a bad week for words at the Supreme Court.