Irregularities in the 2020 presidential election left the winner in doubt in six states. In that situation, federal law (3 U.S.C. Section 2) explicitly invites the state legislature to arrange for appointment of their state’s presidential electors.
All six contested states were certified for the Democratic ticket. In five of those states, the legislative assemblies were controlled by Republicans. Yet none acted. Most even failed to investigate.
Surprised? No. A pattern of state legislative abdication has prevailed for more than a century. Here’s the history:
Under the original Constitution, the state legislatures elected U.S. senators. During the period 1899–1912, state legislatures urged Congress to propose a constitutional amendment depriving them of that power.
When Congress failed to act, state lawmakers promoted a convention to propose such an amendment—the closest America has ever been to an amendments convention. Congress responded with the 17th amendment and state legislatures ratified it in near-record time. One major power lost.
Since 1900, the state legislatures have ratified several other amendments expanding national jurisdiction at their own expense: the 16th amendment, the 18th (since repealed), the 19th, 23rd, 24th, and 26th.
During the 1970s, most state legislatures (but, fortunately, not the necessary three-fourths) ratified the poorly drafted “Equal Rights Amendment,” which would have gutted much traditional state authority.
As the federal leviathan grew relentlessly at the expense of the states, state legislatures rarely rebelled—and when they did, they rarely persisted sufficiently to accomplish much.
During the 1970s, ’80s, and ’90s, citizen activists begged state legislatures to apply for an amendments convention to curb federal overreaching and protect the people and the states. Several of the sought-after amendments were immensely popular. But the required number of legislatures failed to act.
State legislatures have enacted dozens of uniform laws ceding vast areas of policy to legal academics, to their own courts, and, indirectly, to the courts of other states.
Fifteen have adopted the National Popular Vote Compact, which would strip them of their authority over presidential electors. (Whether the compact is constitutional is another matter.)
During the CCP virus epidemic, most state legislatures allowed executive branch agencies to make all relevant decisions, standing by while governors and other officers exercised near-dictatorial powers.
To be sure, some legislative abdications made sense, such as the 19th amendment (ensuring votes for women) and some uniform laws. Moreover, after researching the subject, I’m not convinced that the 17th amendment was a bad idea.
Still, the pattern is remarkable: It has persisted for a very long time. It includes affirmative renunciation as well as passive neglect. And it’s contrary to how we expect politicians to act. It certainly is contrary to how Congress has amassed power.
Over the past 30 years, I have worked with hundreds of state lawmakers. I have often wondered why they’ve shed so many responsibilities over such a long period of time.
No doubt there are many reasons. Let’s examine two obvious ones.
The first is the posture of the national media. Mainstream media have strong incentives to promote centralization of power (a topic for another day). They often caricature decentralization advocates as parochial and as apologists for pre-Civil War-style nullification. During the 2020 election controversy, some Republican lawmakers in contested states anticipated the media depicting a legislative cure as “overturning the will of the people”—even though no one knew what the will of the people in those states really was.
A second reason for state legislative abdication is that many lawmakers, like other members of the public, are unaware that the Constitution places them near the center of our political system.
Remember how your schoolteachers talked about the three branches of the federal government? Dollars to doughnuts, they said nothing about the constitutional role of the state legislatures.
Although those who adopted our Constitution sought to strengthen federal authority, they also left the state legislatures near the center of the constitutional system. Leading founders explained this repeatedly during the constitutional debates of 1787–1790. For example, James Madison, among others, described how states could “interpose” to resist abusive federal actions. They pointed out that because of the Constitution’s structure, the new federal government wouldn’t be able to survive without the states. Several observed that the new system would be closer to the former Articles of Confederation than many people realized.
Tench Coxe, whose essays supporting the Constitution were highly popular, contended that under the Constitution, ultimate sovereignty would lie in state legislatures and state conventions, because they could propose and ratify amendments without federal consent.
Even today, despite all the state legislative cessions, the authority available to state lawmakers remains impressive. It includes:
- Vast areas reserved to the states as per the Ninth and 10th Amendments. These encompass the “police power” [general governance] and the option, subject to congressional approval, of entering interstate compacts.
- Vetoes over change in state borders, creation of national enclaves, and adoption of constitutional amendments.
- To the extent a state legislature controls the suffrage qualifications for elections to the state’s lower house, it controls the suffrage qualifications for congressional elections.
- Conditional authority to fix the “Times, Places, and Manner of holding” congressional elections. This is what the courts call a “federal function” because the Constitution vests it directly in the state legislatures. The Constitution requires state legislatures to share this function with Congress, the governors, and the people via initiative and referendum.
- Power to determine how presidential electors are chosen, including the prerogative of appointing them. Unlike the last, this federal function is vested exclusively in the legislature; it isn’t qualified by the governor’s veto, the state constitution, or initiative and referendum.
- Power to force Congress to call a convention for proposing amendments. Power to appoint and instruct commissioners (delegates) to that convention and to control its proceedings. Power to ratify or reject its proposed amendments. Like authority over presidential electors, all these federal amendment functions are vested by the Constitution exclusively in the state legislatures.
Many state lawmakers remain unaware of how crucial they are to the constitutional system. This helps explain why the contested states’ legislatures remained frozen amid an election disaster.
In some cases, state assemblies were misinformed by their legislative lawyers. These lawyers erroneously advised them that lawmakers could do nothing without the consent of their governors and that the state constitution restricted their options. This erroneous advice was partly the product of modern law school constitutional law courses: obsessed with case law—notably on subjects such as race, pornography, and sex—while largely neglecting the founders’ design and the Constitution’s structural rules.
Obviously, the smooth operation of our constitutional system requires lawmakers who understand their role in our political system. Perhaps more constitutional education will be one result of this sad election.
Robert G. Natelson was a law professor for 25 years and is a senior fellow in constitutional jurisprudence at the Independence Institute in Denver. He has been an adviser to a state legislative committee on federalism, and he serves on the Board of Scholars of the American Legislative Exchange Council, a national organization of conservative and moderate state legislators. His article on “federal functions” is forthcoming from the University of Pennsylvania Journal of Constitutional Law.
Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.