Legislative power that is addressed in article section 1 from the election of senators in article 1 section 3. And again in smiley that made clear that the meaning, as this court reiterated just last week in yates, that the meaning of a term in an enactment may differ depending on the function that the term is serving. Now youre going to the statute. But just under the constitution youre saying the legislature in the first article of section 3, the now repealed section that talks about choosing senators means Something Different than it means in the following section. As this court explained in smith versus hawk, which was an article 5 question of the meaning of the word legislature for purposes of ratification. In smith versus hawk, this court said that in the article 1 section 3 election of senators by the legislature and in article 5 the ratification power, what was at issue was a power that is the power to elect and the power to ratify that specifically comported with the elected representative body. And it used those as examples the court said where often, justice kennedy, often the term legislature in the constitution has that meaning. But smith then goes on and distinguishes hildebrand on precisely the grounds we are urging that what was issued in hildebrand under the elections clause is not a particular body, a brick and mortar legislature necessarily, it is the legislative power of the state. I understand hildebrand is very helpful to you. To get back to Justice Scalias question, is there any other provision where legislature means anything other than the conventional meaning . How about applying for a Constitutional Convention . Calling on the president to send in troops to suppress domestic violence. Creating a new state out of part of the state of arizona for instance. Does it mean anything other than the conventional meaning of legislature . I dont know the answer to that question. It might . You think it might . Well, this court has never said that it doesnt. Its never said that it does. It has focused a lot of attention on three particular in the constitution. The article 5 ratification power, the former article 1 section 3 power to elect. Senators in the legislative body, and the article 1 section 4 power to make the laws in the provision thats at issue here. And i think its particularly important. I want to get to the language of smiley, which my friend embraces. Id like you to because as i read those two cases they dont help you very much. I mean, hildebrand is talking about a particular statute that was passed in 1911, and it helps the government with its statutory argument because a different statute uses similar words. We dont know if it was with the same intent. Smiley talks about a sitting legislature and asks whether its exercise of map growing power is a legislative exercise or say more like an impeachment exercise. It doesnt talk about whats at issue here, where you have people outside that building making the legislative decision. So i didnt see those two cases as helping you that much. The please argue to the contrary. But i think the great open question here is what happens when legislative power over time expands. From a group of people sitting in the states capitol to those people plus a referendum. And there i dont find much help in the cases one way or the other. Justice breyer, i think that hildebrand, smiley, hawk, and also this courts a case that this court decided a few months after smiley and that was block quoted in the courts opinion last week in yates, the atlantic cleaners and dyers case, all strongly support the reading of the the meaning of the words legislature that we advocate and that was in fact the consensus definition of legislature. And i agree with you that the consensus definition, although you cannot give us a single instance in the constitution in which the consensus definition is clearly used. I dont think it was a consensus definition at all. You pluck that out of a couple of dictionaries. It was referring to the dictionaries i take it, are your support. They say how the word is used. And they define the dictionary definition of legislature as the power we dont use that word power in that sense much anymore but the power that legislates. The power that legislates in arizona is the people in the capital plus the referendums. I will address the cases, Justice Breyer, if i may, just First Respond to Justice Scalias assertion. One thing is for sure. If there were any other dictionary that had a different principal meaning we would have seen it in the briefing in this case. But you only have to look at the framers own use of the term, if i may. Charles pinkney, for example, these are collected at pages 39 and 40 of our brief. Charles pinkney, for example, who wanted to do away with the second part of the clause that Gave Congress any power because he thought it was an impairment on the states rights said, that america is a republic where the people at large either collectively or by representation form the legislature. Madison made clear in discussing the constitution that when he referred to the legislatures of the states he meant the existing authorities in the state that comprised the legislative branch of government. James wilson repeatedly interspersed legislatures, states, and the people acting by lets say that legislature means the body we normally can think of as the legislature. However, at the time there was no such thing as the referendum or the initiative. So when the dictionaries referred to the power, the power that makes laws it was always the legislature. It was never the people at large because there was no such thing. As the referendum. Now that there is such a thing as the referendum what about saying okay, legislature means what Everybody Knows a legislature is. Plus the full citizenry which is a level higher of democracy. But what we have here is not a level higher of democracy. Its giving this power to an unelected body of five people that could that body as its constituted here, two of them are elected or selected by the Majority Party, two selected by the minority party. What if arizona decided all four would be selected by the Majority Party . Justice scalia, any delegation question the issue in this case is what does the word legislature mean . My friend concedes that whatever the legislature is it can delegate its authority. So the delegation questions, i mean, ill endorse whatever i believe my friend would say because the Arizona Legislature has delegated all manner of time, place, and manner regulations to a single person. Both the secretary of state and executive officer and the individual counties that set the precinct places, the places where you can register, et cetera. So delegation, i dont think is in this case. The question is what is the legislature . And if your question is, well, you know, now we know that theres something called an initiative, of course that we knew this 120 years ago when the first states first started reserving in their constitutions legislative power to the people by initiative, but just to echo something that justin kagan alluded to in the earlier argument there are were talking here about a construction of the word legislature as to all time, place, or manner regulations. Why doesnt your interpretation make the words by the legislature thereof entirely superfluous . In other words, why didnt they just say that the rules would be prescribed by each state . Because if because im sorry . Because as the court explained in smiley, what the framers wanted was it to be done by a legislation. That is, it wanted a, quote, complete code of Holding Congressional elections to be enacted. I understood your argument to be that as long as its an exercise of legislative power that its satisfied. And if you have, for example, a governor doing it would be pursuant to a delegation either from the people or from the legislature. But either way, nothing happens until theres an exercise of lawmaking power by the state. So it should have been sufficient for the drafters of the constitution to simply say it should be prescribed by each state. Whether they do it by referendum, whether they do it by initiative, whether they do it by what is commonly understood to be the legislature. Whether they do it by committee. Whatever. Its up to the state. Saying by the legislature seems as i said, superfluous. It is up to the power in each state that makes the laws. And as to Justice Scalias hypothetical about could they just delegate it to the chair of the state Democratic Party or just let one party choose, as Justice Kennedys separate opinion in veef and cook versus grayliff points out there, might be other constitutional problems with that arising either from the First Amendment or the 14th amendment. But i believe that mr. Clement would agree on rebuttal that if the legislature, whatever the legislature means, if the legislature decided look, we are going to delegate this responsibility to the governor that would be a constitutional delegation because it would have been a decision made by the lawmaking body of the state. If i could just make one point and then address Justice Breyers question about smiley, hildebrand, and hawk, it would be deeply, deeply inconsistent with the enterprise in philadelphia to her better and effectuate the notion that our framers intended to set aside both a cornerstone principle of federalism in their aim to bind the people as closely as possible to the National House of representatives. Yes, it is true that all of the sturm and drang over this clause related to the second part giving congress authority and that is because no one questioned the fundamental principles that the sovereign states could choose to allocate their legislative power as they wanted. If there had been any suggestion, the antifederalists would have been screaming bloody murder that the states could not do so. Now smiley specifically said that im quoting from page 367, as the authority is conferred for the purpose of making laws for the state, it follows in the absence of an indication of a contrary intent that the exercise of the authority must be in accordance with the method the state has chosen, has prescribed for legislative enactments. If i may point out, the legislature in both smiley and hildebrand remained the prime mover. Hilldebrand remained the prime mover. And what he has objected to is taking the legislature out of the picture entirely. Yes, justice ginsberg, we can see that in neither case was the Initiative Power at issue. But that distinction was never made by the court either in hildebrand or smiley. In fact, smiley says, we find no suggestion in the federal constitutional provision of an attempt to endow the legislature of a state with power to enact laws in any manner other than which the constitution its not that im not its quibbling in a sense about the case. But the question in the case is not about they say the body. I mean, whats the body . Everybody agreed it was the legislature. But when the legislature acts in this instance, is it acting as an electoral body . Is it acting as a ratifying body . Is it acting as a consenting body . As with the acquisition of lands . Or is it acting as a legislating body . And thats correct and thats the answer they give. This is a form of legislation. Here the question is about the body. Thats right. The question is, are the people by initiative a legislative body . Are they the legislature as they themselves have chosen . And in smiley, again, discussing hildebrandt, this is what the court said. And it was because of the authority of the state to determine what should constitute its legislative process that the validity of the requirement of the state constitution in its application to Congressional Elections was sustained. And again legislative process there means the process in the legislature. What it takes for the legislature to enact a law thats once you assume legislative refers to legislature, your whole argument for smiley just disappears. The state of arizona, like the states of a near majority the constitutions of the states of a near majority have defined the legislative power to include the people by initiative. And again, you know, in atlanta cleaners and dyers, which was decided a month after smiley and which this court quoted last week in yates, it said that it is not unusual for the same word to be used with different meanings. And thus and im quoting and thus, for example, the meaning of the word legislature, used several times in the federal constitution, differs according to the connection in which it is employed. Depending upon the character of the function which that body in each instance is called upon to exercise citing smiley. Youve said the court in yates. It was a plurality . Was it . Or am i yates doesnt itself, just to be clear, yates doesnt talk about this. It was the decision in yates. I thought my point only is that the this Supreme Court in the months following smiley again interpreted smiley i was not quoting from yates. Im quoting from atlanta cleaners and dyers itself citing smiley. Thank you. Mr. Clement, you have five minutes left. Thank you, mr. Chief justice. May it please the court, let me start with the definition of legislature. Obviously we can point to our favorite quotes from the framers. There are 24, 34, 35 of the blue brief. The critical thing though is not what the framers meant by the legislature when they were talking broadly about political theory or the swiss cannon of zug. What matters is when they were talking about assigning particular authorities in the constitution to particular components of the state government. And in that context as a number of you have pointed out, there is no doubt every time they assigned an authority to the state legislature, they were assigning the authority to the representative body of the people. Now, that takes us to the smiley case. And if the definition of legislature in the smiley case is what this case turns on, then with all due respect to my friends on the other side, we win. Because smiley specifically talked, as Justice Breyer alluded to, the body question. Then it defined the body. And what it said is, quote, im quoting from smiley not yates or anything else, im quoting from smiley. The term was not one of uncertain meaning when incorporated into the constitution. What it meant when adopted, it still means for purposes of interpretation. A legislature was then the representative body which made the laws of the people thats true, but i see, smiley doesnt help him, i dont think, but it helps you still less. Because that was the question in the case. Everybody assumed, nobody denied, that its those people in the bricks over there that are making this law. But the question is, are they legislating when theyre doing it . Nobody denied they were the legislative power. Here we have a different question. That is respect is this the legislative power received by referendum in the the reason i say smiley might help is simply because it says be a little flexible about that. I think it says a little bit flexible about the lawmaking authority of the state legislature. So dont think youve been given some new key that allows you to make laws without the process of the governor being involved at all. I do think smileys very helpful, not only does it answer the body question but the parties disputed this. And the other side in smiley said, we win this case because legislature means the lawmaking authority. The other side said, no, it means the body. This court said, youre right, it means the body. But critically its a lawmaking function, therefore its subject to gubernatorial veto. I think they would have been flabbergasted to find out the legislature which they just defined as the representative body of the people could be cut out entirely. I wouldnt think, mr. Clement, that the overriding principle of smiley and hildebrandt and hawk is when it comes to this particular provision, and this particular provision as compared to the seventeenth amendment, which is the comparison and the contrast that hawk sets up when it comes to this particular provision we need to show a lot of respect to the states own decisions about how legislative power ought to be exercised. That seems to me the overriding principle of the three cases. I think what you have to show is respect for the way that the state says the state legislature can go about lawmaking. But it is completely different to say its okay to cut the state legislature out of the process entirely. Let me avert very briefly to the 1911 act which, of course, is since repealed. I think the questions show that the actual statute thats now on the books has nothing to do with this case. But the irony of my friends on the other side relying on the legislation the legislative history of the 1911 act is the whole point of the legislative history in 1911 is people in 1911 could read the statute on the books then said youre going to have the federal default rule kick in until the state legislature redistricts. They realized in 1911 that the state legislature meant the state legislature so they Better Change that law if they wanted to allow the referendum process. So the 1911 legislative history, not that i think you should particularly spend a lot of time with it, it actually cuts against them on the constitutional issue. It shows that there is a fundamental difference between the legislature and the people. And as the chief justice pointed out, if there werent, then the framers could have stopped the election clause in each state. They wouldnt have had to say, by the legislatures thereof. Of course the other side you can turn that around and say what that provision shows is really exactly what i just said, is that congress was also on board with this idea that the court had that when you look at that clause, the elections clause, that a lot of respect, a lot of deference, has to be given to the states own definition. And just if i may respond, justice kagan, im happy with giving deference to what the state legislature does. If thats constrained in the state by the rule that you have gubernatorial veto, override by referendum, something has to sit in committee for 30 days, the restrictions on the state legislature are fine but it has to be the state legislature. Thank you, counsel. The case is submitted. 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