Florida Legislative Supremacy

[Morrison, Trevor W]

Tobias Wolff writes:

Might "State . . . Legislature" not have seemed to the framers the most natural way to refer
to the positive legal authority of the several States? . . . .

I would note that under the theory Professor Wolff proposes, our understanding of other constitutional provisions, including the Ex Post Facto Clause, would have to change rather dramatically.  The Ex Post Facto Clause applicable to the States, U.S. Const. art. I, sec. 10, cl. 1, provides that "No State shall . . . pass any . . . ex post facto Law."  Under Professor Wolff's theory, it would seem that since we now recognize the courts as a potential source of law, the Ex Post Facto Clause should be understood to apply to judicial decisions just as it does to legislative enactments.  This has a certain textual appeal, since our natural understanding of the word "State" may be that it includes all branches of state government.  But any intuitive appeal of such an argument aside, it would face a rather uphill battle in light of the Supreme Court's longstanding holding that the Ex Post Facto Clause "is a restraint upon legislative power and concerns the making of laws, not their construction by the courts."  Ross v. Oregon, 227 U.S. 150, 161 (1913).  The Court has elsewhere held that the Due Process Clause imposes at least some of the restraints on adjudicative retroactivity in the criminal law that the Ex Post Facto Clause imposes on legislative retroactivity, see Bouie v. City of Columbia, 378 U.S. 347 (1964), but it has done so in part because of its recognition that the Ex Post Facto Clause itself does not apply to the States.

Trevor Morrison (in my personal capacity)