Illinois Law dean Vikram David Amar comments on the U.S. Supreme Court’s decision in Moore v. Harper, in which the Court forcefully repudiated the essence of the so-called “Independent State Legislature” (ISL) theory. Dean Amar describes the apparent evolution of several Justices’ views on ISL theory and explains how that evolution led to the Court’s sound rejection of the theory.
Illinois Law Dean Vikram David Amar comments on the latest developments in Moore v. Harper, the pending Supreme Court case involving the “Independent State Legislature” (ISL) theory of Articles I and II of the Constitution. Dean Amar explains how we might interpret the Moore parties’ offer (and the Justices’ acceptance) of supplemental briefing on the effect of the ruling by the North Carolina Supreme Court last week and explores the significance of newly reported information about Justice Sandra Day O’Connor’s apparent abandonment of ISL theory during the deliberations in the 2000 Bush v. Gore case.
Illinois Law Dean Vikram David Amar and Professor Jason Mazzone argue that, in light of the North Carolina Supreme Court’s “switcheroo” regarding partisan gerrymandering, the U.S. Supreme Court should immediately grant certiorari in Huffman v. Neiman to resolve the question of “Independent State Legislature (ISL) theory. Dean Amar and Professor Mazzone point out that the intense litigation pressure of today’s presidential elections and the shaky stature of the present Supreme Court together strongly support the Court acting quickly to resolve this pressing issue.
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.
