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Ray Haynes

How to Drive the Left Nutty

Want to see the left wing media and its leftist followers completely bat guano crazy?

Just mention the “independent state legislature” doctrine that is gaining traction around the country.

Do that, and you will hear the left wing media cite a thousand constitutional “scholars” who will call you every kind of negative nickname they have ever assigned to conservatives in this country, and they will end with how dangerous you and anyone who thinks like you is to our Constitution and our Republic.

Simply stated, the independent state legislature doctrine says that the various state legislatures throughout the country are discrete sovereign units with functions specifically reserved to them by the Constitution. There are three main sources of that reservation of state sovereignty: (1) Article 1, Section 4 of the Constitution, which reserves to the states the power to determine the “time, place, and manner” of elections; (2) Article 2, Section 1 of the Constitution that reserves to the Legislature the power to determine the method of electing the President of the United States, and (3) the 10th Amendment, which reserves to the states every other power not specifically granted to Federal Government by the Constitution.

It is important to note that the powers are “reserved to the states” and not “granted” to the states by the Constitution. The Federal Government was never intended by the Founders to be the source of “sovereignty” in this country. State Legislatures were, and their power was “limited” by the Constitution. The states granted the Federal government power in the Constitution, not the other way around.

The Left denies this fact, and brands anyone who holds it as uninformed and stupid. They are wrong, of course, and completely ignore the statements by the Founders to the contrary. I start with the Federalist No. 45 where James Madison observes that the Federal Government must rely on the states for its power and organization, whereas the states don’t need the Feds for anything. That is the core of the “independent state legislature” doctrine, and it was held for more than 150 years in this country. It’s just lately that we have forgotten.

There are three specific examples of late, and if you have been following them, you can tell that the “independent state legislature” doctrine drives the left nuts.

First, the recent redistricting debates. Until 2010, “gerrymandering” as drawing districts to advantage the party in power was perfectly acceptable. Drawn from the Article 1 Section 4 power to “determine the time, place and manner” of elections, state legislatures have had the power to draw Congressional districts since the founding of this country. Even its name, “gerrymandering” is drawn from the process of drawing districts used by Eldridge Gerry when he drew the maps for Massachusetts in the first redistricting process ever in 1792. For 70 years, from 1940 until 2010, the left loved gerrymandering because it left Democrats in charge of states long after their ideas left voters disaffected. No courts set aside those districts, or drew new ones, no initiatives were filed to stop them.

Then 2010 occurred, and suddenly Republicans could draw the districts. OH NO!! The left cried, the agony, the destruction–Republicans are being unfair, they are drawing districts to benefit themselves. How evil. As long as the Democrats did it, those lines were necessary, when Republicans did it, it’s unfair. Suddenly, we are seeing state and federal courts interfering with a process that courts used to call “a political thicket” when Democrats did it. And the press is going after Clarence Thomas, the leading advocate of the “independent state legislature” doctrine on the Supreme Court, by attacking his wife as too political and his opinions as anachronistic. Their attacks are relentless and devoid of any historical fact, just a bunch of leftist law professors who parrot the left’s narrative on why Democrats should still be allowed to draw the lines, whether it is by the courts, or the leftist law professors.

The next example is the Presidential election. Article 2, Section 1 of the Constitution reserves the right to determine the method of electing the President to the State Legislatures. In fact, as James Madison noted in the Federalist No. 45, the President cannot be elected “without the intervention” of the state legislatures.

Say that, however, and hundreds of lawyers will line up to file ethics charges against you, as John Eastman has learned. Now, I disagree with some of Eastman’s legal conclusions about the Electoral Count Act, as enacted by Congress, but not about the power of the Legislatures set up the terms about how Presidential electors are appointed. Had I been the legal adviser to Trump, I would have advised that the campaign act before the election and not after. I wasn’t, but I am sure that if I was, there would be law professors trying to get me, instead of John Eastman, disbarred.

The third example was the effort of Congress, through HR and S 1, in 2021, to change election law. Once again, the Constitution reserves to state legislatures the power to set election law. In the 2020 election, we saw courts and state governors simply changing that election law by fiat, without action by the state legislatures. The Democrats are losing elections when state legislatures write election law, so they have to build the advantage in across the country with Congress. In 2020, when they couldn’t do that, they used Democrat Governors and courts to rewrite election law. That was the real election fraud of 2020 that enabled the other abuses to occur. That is why these actions should have been challenged before the elections, instead of after.

When that didn’t work, they started rewriting election law in Congress, in direct contravention of Art. 1, Section 4. Can’t have Legislatures setting election law, those legislatures might actually maintain the integrity of elections, and, if they do that, Democrats will lose.

Of course, there are problems in the “independent state legislature doctrine” for conservatives as well. California is the best example of that. The left dominates the California Legislature, and the things that Legislature does it completely nuts, real “bat guano” crazy. But that is what the majority of Californians put in place, and, if we are to be Constitutionally consistent, we are forced to use the political process, and not the courts, to change the actors who are doing these crazy things. That is the Republican challenge in California in the next 10 years.