Although Chief Justice Robertsโ Dissent in the Arizona Legislature Case Cited My Research, I Actually Agree With the Majority!
In my last post, I discussed the effect on Coloradoโs Taxpayerโs Bill of Rights (TABOR) of the Supreme Courtโs ruling in Arizona State Legislature v. Arizona Independent Redistricting Commโn. In this post, I explain why the Arizona case was decided correctly.
Some people may be surprised that I think the holding was correct. Iโm politically conservative and the case was brought by a Republican state legislature. The decision was 5-4, with the more liberal justices on the winning side and the more conservative justices dissenting. In his own dissent, Chief Justice Roberts was kind enough to citeย one of my own works (although on a point only distantly related to the result). And conservative complaints about the case have been bitter.
But in this column I try to tell it as it is, and in this instance I think the liberal justices clearly had it right.
The basic issue was the meaning of โLegislatureโ in the clause of the Constitution that provides that โThe Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof . . . . โ (Article I, Section 4, Clause 4; abbreviated I-4-1) That provision is sometimes called the Election Clause. A better name for it is the Times, Places and Manner Clause. Weโll use the latter term here.
Now, it is well establishedโbased on case law and on the Constitutionโs original legal forceโthat part of prescribing the โPlaces. . . of Elections for . . . Representativesโ is drawing the congressional districts within a state.
For many years, the Arizona state legislature drew Arizona congressional districts, and many people claimed those districts often were gerrymandered. The stateโs voters, therefore, opted to transfer the job to an independent redistricting commission, a decision made by voters in several other states as well.
Arizona state lawmakers sued, claiming that the term โLegislatureโ in the Constitution always means the specific representative assembly of a state. They claimed, in other words, that the people had acted unconstitutionally, and that they could not move congressional district-drawing from the state legislature to a commission.
The Arizona Independent Redistricting Commission responded by arguing that sometimes the Constitution uses the word โLegislatureโ to mean the general legislative power of the state. In this case, the commission argued, the people, through the initiative and referendum process, had acted as the โLegislature.โ Just as the people could deputize one assembly to do the job, the people could deputize another (the commission).
The Supreme Court held that in this case the term โLegislatureโ meant the general legislative power of the state: Arizona voters, as the supreme state legislative power, had acted constitutionally.
The Court had case precedent on its side. Earlier cases had ruled that, although in some parts of the Constitution (e.g., Article V), the term โLegislatureโ means only the representative assembly, in the Times, Places and Manner Clause it meant the general legislative power, however the people of a state wish to exercise it.
Of course, the Supreme Courtโs precedents do not always reflect the true, original meaning of the Constitution. In this instance, though, they do. Hereโs why:
* Although there is a presumption that the same word in different parts of the Constitution means the same thing, there are important exceptions. For example, in my book, The Original Constitution, I show how the word โpropertyโ in Article IV means โreal estateโ while same word in the Fifth Amendment means both real estate and personal property.
* Similarly, the Constitution uses the term โCongressโ in a dual sense. Sometimes it means only a specific assembly. (Examples include I-1; I-4-2; and Article V.) But on other occasions the Constitution employs the word โCongressโ to mean the general legislative power. (See, for instance, I-8 and III-3-2). When โCongressโ acts as a specific assembly rather than as the legislature per se, it acts by an ad hoc resolution, not by a law, and without any need for presidential signature. When Congress acts as the federal legislature, it enacts laws, which generally have to be signed by the President.
The fact that the Constitution employs this double usage for the federallegislature implies the same double usage for state legislatures.
* Founding era legislative practice also supports this view. The Constitution provides that presidential electors for each state are appointed โin such Manner as the Legislature thereof may direct.โ When the legislature of South Carolina, for instance, first provided for selection of presidential electors, it did not do so by an ad hoc resolution. It did so by formal legislation.
* in fact, Founding Era election rules universally were established by acts of ordinary legislation, not by ad hoc resolution. The Times, Places and Manner Clause was written against a long background of formal election legislation, both in America and in Britain.
* How the people choose to allocate the legislative power of the state is entirely up to them, as James Madison and other Founders recognized. Indeed, at the time the Constitution was adopted, several states provided for slices of the legislative power to be exercised by entities other than legislatureโby the governor, by executive councils, and by the people themselves.
Finally, hereโs a political point: As this case illustrates, in Arizona and some other states, pro-freedom citizens sometimes attack the initiative and referendum process and demand curbs on it. This is a mistake.
It is politically foolish (you donโt please the voters by attacking them), but it is also wrong as a matter of principle.
In our country, the people are the rightful source of all political power. A โrepublic,โ as the Constitution uses the term, is a government based on the peopleโs will. Instead of attacking the peopleโs right to decide, our time is best spent persuading them to make the best decisions possible.
- How the Founders Explained Limits on the Federal Government - January 21, 2026
- The Constitution and the Trump Tariffs - December 7, 2025
- Ancient Rome and the Constitution - October 29, 2025