Florida Legislative Supremacy

[Tobias Barrington Wolff]

Trevor Morrison writes:
>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. . . .

This is interesting, but it seems to have more to do with the particular
reasons why Ex Post Facto laws are forbidden, rather than any problem with
the general practice of reading constitutional limitations on the power of
the States as applying equally to state courts.  That is, where the
Constitution says that "No State shall [do X]", this prohibition may apply
equally to all State institutions, but "X" may play out differently when
attempted by legislatures or by courts, not for reasons having to do with
the nature of their authority, but for reasons having to do with the
practical impact of their actions.  Compare the prohibition on the
prospective creation of "common law" crimes by courts, which rests (as I
understand it) not on any limitation on the inherent power of courts, but
on the heightened due process requirement that citizens must have specific,
advance notice of the behaviors that might subject them to criminal
punishment.  (Also, it gives me too much credit to  characterize my
suggestion as a theory -- so far, it is just a thought that nagged me as I
turned earlier posts over in my mind.)

Responding to Prof. Scarberry's post, it's certainly true that courts
decided novel legal questions before the founding.  The question I meant to
pose in raising Erie was, when they did so, were they understood as
interpreting a body of authority that was independent of the positive
authority of the State, or were they understood as "making law" in the same
way that legislatures do?  To the extent that courts were understood to be
doing the former, it might have made sense to the founders use "State
Legislature" as shorthand for the positive legal authority of the State
when discussing a question that is entirely internal to that legal
authority, i.e. how a political process will be conducted.

This suggestion is no slam dunk.  But neither, I think, is an overly
literal reading of "State . . . Legislature".  Compare Powell v. McCormack,
after all.  Article I, section 5 states clearly that "each House shall be
the Judge of the . . . Qualifications of its own Members" -- the
reservation of this decision to the two branches of Congress could not be
clearer.  And yet, the Court held in Powell that it possessed the authority
to review the House's exercise of that power, to proclaim that the House
had misinterpreted the scope of that power, and to install Adam Clayton
Powell in his seat despite the House's vote to the contrary.

-- TBW