Imagine that you are driving down the road when you are pulled over by a state trooper. You are perplexed, because you have no idea why he stopped you. When you ask, he says that you were going 40 in a 25 mph area. You reply that the sign says the speed limit is 40. He responds that that is true, the sign says 40, but it really means 25. When you challenge the ticket in court, the judge agrees with the trooper that while the sign may say 40, it doesn’t mean 40. It really means 25, and finds you guilty of speeding.
How is it possible that 40 means something other than 40? Forty isn’t unclear or ambiguous. It doesn’t need interpretation. Forty is a number, and it can’t mean something other than 40. Sure, there are some words that aren’t precise, words like “fair” or “reasonable.” And there are some words that may require some clarification in some situations.
Every law school student learns early on that in legal matters words that are vague, unclear, or ambiguous can create serious problems. In a will, for example, do the words “my children” include adopted children, step children, grandchildren, and illegitimate children? Competent lawyers know how to deal with this issue.
There are, of course, certain words that, based upon the context, are as clear and unambiguous as the number 40 on a speed limit sign. Or at least, they should be. However, there is a case now before the U.S. Supreme Court where the issue is the equivalent of asking whether 40 really means 25.
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At issue is the question of whether the word “Legislature” in Article I, Section 4, of the U.S. Constitution really means “Legislature.” According to the Brennan Center for Justice, the “dispute hinges on how to understand the word ‘legislature.’” Many courts, including the Supreme Court of Pennsylvania, think it means something other than the legislature. In this case before the U.S. Supreme Court, it is being argued that it means “legislation.” The Pennsylvania Supreme Court has in the past gone even further, apparently thinking “Legislature” means the Pennsylvania Supreme Court.
On Dec. 22, 2011, the Pennsylvania legislature enacted the Congressional Redistricting Act of 2011, which was then signed into law by the governor. Nonetheless, the Pennsylvania Supreme Court held that the map that was drawn by the legislature and signed into law by the governor was unconstitutional under the Pennsylvania state constitution, and ultimately drew its own map. Somehow, the Pennsylvania Supreme Court apparently thinks that the state constitution is higher than the U.S. Constitution despite the provision in Article VI of the U.S. Constitution that provides:
“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
Article I, Section 4 of the U.S. Constitution states:
“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.”
To read the word “Legislature” as meaning something other than the legislature of the state is the equivalent of reading “40” as something other than 40.
Is the term “Legislature” in the provision unclear or ambiguous? It clearly does not say “prescribed in each State by legislation.” Nor does it say “by the Legislature by law” as it does with regard to the provision granting Congress authority to make or alter what the state legislature has prescribed. And just as clearly is the word “the” before the word “Legislature” indicating that it is referring to the governmental body and not the result of some action taken by that body. Furthermore, it clearly references what the legislature has prescribed as “Regulations” and not enacted laws. The provision in Article VI just as clearly refers to the “Laws of any State.” It should, therefore, be obvious that the drafters knew the difference between “Laws” and “Regulations.”
It is important to keep in mind that Article I, Section 4 was not drafted by students in a high school remedial English class. It was very carefully crafted and drafted by educated men who were putting together an important document to entice the states to ratify it, and create the federal government that was being proposed.
A reading of the original constitution clearly demonstrates that the drafters were distinguishing between the “Legislature” and the “Executive.” Initially, Senators were to be chosen in each state by the “Legislature.” If a vacancy occurred, the “Executive” was given authority to make a temporary appointment if the “Legislature” was in recess.
To read the word “Legislature” as meaning something other than the legislature of the state is, therefore, the equivalent of reading “40” as something other than 40.
Howard Lurie is Emeritus Professor of Law, Villanova University Charles Widger School of Law.