Florida Legislative Supremacy

[Scarberry, Mark]

My sense is that judicial creation of rules was well established long before
the Founding of the US. Just think of the maxim that statutes in derogation
of the common law are to be construed narrowly. Of course it would have
seemed strange to expect courts to create a system for choice of
electors--but it would still seem strange today to expect courts to do such
a thing. Thus I don't know that legal understanding has changed in any way
relevant to interpretation of the term "legislature" in Art. II, sec. 1. I
also think the parallelism with the original provision for choice of US
Senators by state legislatures renders unreasonable any interpretation that
includes the state judicial and executive branches within the meaning of
"legislature" in Art. II, sec. 1.

And I don't think this understanding of Art II, sec. 1 creates an inflexible
division of powers. A legislature may provide for state judges to decide
matters pertaining to choice of electors, but the legislature, in my view,
may change those provisions without any limitation based on state executive
power (such as a governor's veto power) or on state constitutional
separation of powers doctrines. That leaves a lot of flexibility, but it
leaves it in the hands of the legislature, where the US Constitution puts
it. Of course the legislature is bound by the Fourteenth Amendment, and thus
there could be federal constitutional challenges to the state legislature's
rules for choosing electors. (E.g., a state legislature may not provide that
only members of a certain race may vote for presidential electors.) But the
14th amendment does not require that judges have the final say in making
important political decisions.

Mark Scarberry
Pepperdine




-----Original Message-----
From: Tobias Barrington Wolff
To: CONLAWPROF at listserv.ucla.edu
Sent: 11/19/00 12:10 PM
Subject: Re: Florida Legislative Supremacy

Mark Scarberry writes:
>Whether the legislature ought to do this is an open question in my
mind,
>but I do not think state law (even state constitutional law) can
detract
>from authority granted to a legislature by the US Constitution. I do
not
>think that Florida constitutional separation of powers doctrine
controls.
>To the contrary, if the US constitution grants this authority to the
state
>legislature, then in effect there is a US constitutionally mandated
>separation of powers issue which arguably prohibits the state
judiciary
>from interfering with the state legislature.

It does bear mentioning that the Constitution was drafted long before
Erie,
when it was at least contested whether courts ever articulated positive
legal norms in the same way that legislatures do.  Might "State . . .
Legislature" not have seemed to the framers the most natural way to
refer
to the positive legal authority of the several States?  At the very
least,
that seems like a more likely reading than one that would impose upon
the
States an inflexible division of internal authority.  (I do not have
elaborate historical evidence demonstrating the correctness of this
suggestion, but offer it for discussion.)

-- TBW