The Quiet Revolution in Constitutional Interpretation
When the Supreme Court handed down its decision in Moore v. Harper last June, most observers focused on the 6-3 majority that rejected the independent state legislature theory. But buried in Justice Amy Coney Barrett’s concurring opinion lies something much more interesting: her methodical dismantling of the textualist approach that many assumed would dominate this Court for decades. Barrett, writing for herself alone, spent eleven pages explaining why the Constitution’s text cannot be divorced from two centuries of democratic practice. This is a position that would have been heretical among conservative legal scholars just five years ago.
The case itself seemed straightforward enough. North Carolina’s Supreme Court had struck down a congressional redistricting map as an illegal partisan gerrymander under the state constitution. Republican legislators argued that Article I, Section 4 gives state legislatures exclusive authority over federal election procedures, making state court oversight unconstitutional. This “independent state legislature theory” had gained traction in conservative circles, particularly after Bush v. Gore, as a way to insulate Republican-controlled legislatures from state court review of election laws.
What makes Barrett’s concurrence remarkable isn’t that she rejected this theory. The majority opinion by Chief Justice Roberts did that decisively. Rather, it’s how she rejected it. Instead of relying primarily on constitutional text and original meaning, as her judicial philosophy would typically demand, Barrett grounded her analysis in what she called “historical practice and precedent.” She traced state court review of election laws back to the founding era, citing cases from 1792 and 1803 where state courts invalidated legislative election procedures without constitutional controversy.
The Textualist Dilemma Revealed
Barrett’s approach exposes a tension within conservative constitutional interpretation that legal scholars have debated privately for years. Pure textualism says constitutional meaning comes solely from the ordinary public meaning of words at the time of ratification. But this struggles with provisions like the Elections Clause, which delegates authority to “the Legislature thereof” without defining the precise boundaries of that delegation. When constitutional text is genuinely ambiguous, even committed textualists must look elsewhere for guidance.
Consider Barrett’s treatment of Article I, Section 4’s language. The clause states that “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” A strict textual reading might suggest absolute legislative supremacy over federal elections. But Barrett noted that this interpretation would create absurd results. It would mean state legislatures could ignore their own state constitutions, violate due process, or even delegate election authority to private corporations, since the federal constitution places no explicit limits on this power.
This analysis represents a subtle but important evolution in Barrett’s jurisprudence. In previous cases like Students for Fair Admissions v. Harvard, she had insisted that constitutional interpretation begin and end with text and original meaning. Here, she explicitly acknowledged that “the Constitution’s text alone does not resolve” the scope of legislative authority over elections. This admission, that constitutional text sometimes requires interpretation through historical practice, marks a departure from the rigid textualism that characterized her early Supreme Court opinions.
Historical Practice as Constitutional Meaning
The most striking aspect of Barrett’s concurrence is her embrace of what constitutional scholars call “constitutional construction.” This is the process of building constitutional meaning through institutional practice over time. She spent considerable attention on New York’s 1792 election law dispute, where the state’s Council of Revision (which included judges) rejected a legislative redistricting plan. Rather than treating this as merely illustrative, Barrett argued that such early practices help define the constitutional framework itself.
This methodology aligns Barrett more closely with Justice Elena Kagan’s approach to constitutional interpretation than with Justice Clarence Thomas’s strict originalism. When Barrett writes that “historical practice matters,” she’s endorsing a form of constitutional evolutionism that allows democratic institutions to shape constitutional meaning through repeated practice. This is precisely the kind of “living constitutionalism” that conservative legal scholars have criticized for decades as judicial activism in disguise.
The practical implications extend far beyond election law. Barrett’s framework suggests that longstanding governmental practices can acquire constitutional meaning even without explicit textual support. This principle could reshape debates over executive power, congressional authority, and federalism. If two centuries of state court election oversight creates constitutional precedent, what other established practices might carry similar weight? The administrative state, for instance, operates largely without explicit constitutional authorization but has functioned for nearly a century.
The Conservative Coalition’s Fracture Lines
Barrett’s concurrence reveals deeper fault lines within the Court’s conservative majority that will likely influence constitutional law for decades. While Justices Thomas, Alito, and Gorsuch remain committed to strict textual interpretation, Barrett appears increasingly willing to incorporate institutional history and democratic practice into constitutional analysis. This shift could prove decisive in closely divided cases involving structural constitutional questions.
The independent state legislature theory was a perfect test case for these competing approaches. Justice Thomas’s dissent, joined by Alito and Gorsuch, relied heavily on textual analysis and founding-era evidence to argue for broad legislative authority over federal elections. Barrett, by contrast, emphasized post-ratification practice and the need for constitutional interpretation that preserves democratic accountability. Her approach suggests skepticism toward constitutional theories that would insulate government institutions from traditional forms of legal oversight.
This methodological divergence extends beyond election law to basic questions about constitutional interpretation in a democracy. Barrett’s concurrence suggests growing comfort with the idea that constitutional meaning emerges through democratic practice, not just founding-era text. This position puts her closer to the Court’s liberal wing on questions of interpretive methodology, even when she reaches conservative conclusions on substantive issues.
Constitutional Democracy’s Adaptive Capacity
The broader meaning of Barrett’s approach lies in its implications for how constitutional democracy adapts to changing circumstances while maintaining institutional continuity. By grounding constitutional interpretation in historical practice, she provides a framework for evolutionary constitutional development that doesn’t rely on judicial activism or legislative amendment. This middle path between rigid originalism and unconstrained judicial interpretation may prove essential for maintaining constitutional legitimacy in an increasingly polarized political environment.
Barrett’s methodology also suggests recognition that constitutional provisions must function within broader institutional frameworks that have evolved over time. The Elections Clause cannot be interpreted in isolation from two centuries of federalism, judicial review, and democratic practice. This approach to constitutional interpretation acknowledges that founding-era text provides constitutional boundaries, but institutional practice fills in operational details.
Whether Barrett’s approach represents a temporary methodological compromise or a permanent shift in conservative constitutional interpretation remains to be seen. Her concurrence in Moore v. Harper offers a window into how constitutional law might develop when strict textualism encounters complex institutional realities. The question facing constitutional scholars and political observers is whether this synthesis of text and practice can provide a stable foundation for constitutional interpretation, or whether it represents an unstable compromise between competing judicial philosophies that will eventually require resolution in favor of one approach or the other.