Page:Arizona State Legislature v. Arizona Independent Redistricting Comm’n.pdf/43

4 “processes” violate the United States Constitution. In a conflict between the Arizona Constitution and the Elections Clause, the State Constitution must give way. Art. VI, cl. 2; Cook v. Gralike, 531 U. S. 510, 523 (2001). The majority opinion therefore largely misses the point.

The relevant question in this case is how to define “the Legislature” under the Elections Clause. The majority opinion does not seriously turn to that question until page 24, and even then it fails to provide a coherent answer. The Court seems to conclude, based largely on its understanding of the “history and purpose” of the Elections Clause, ante, at 24, that “the Legislature” encompasses any entity in a State that exercises legislative power. That circular definition lacks any basis in the text of the Constitution or any other relevant legal source.

The majority’s textual analysis consists, in its entirety, of one paragraph citing founding era dictionaries. The majority points to various dictionaries that follow Samuel Johnson’s definition of “legislature” as the “power that makes laws.” Ibid. (internal quotation marks omitted). The notion that this definition corresponds to the entire population of a State is strained to begin with, and largely discredited by the majority’s own admission that “[d]irect lawmaking by the people was virtually unknown when the Constitution of 1787 was drafted.” Ante, at 3 (internal quotation marks omitted); see ante, at 27. Moreover, Dr. Johnson’s first example of the usage of “legislature” is this: “Without the concurrent consent of all three parts of the legislature, no law is or can be made.” 2 A Dictionary of the English Language (1st ed. 1755) (emphasis deleted). Johnson borrowed that sentence from Matthew Hale, who defined the “Three Parts of the Legislature” of England as the King and the two houses of Parliament. History of the Common Law of England 2 (1713). (The contrary notion that the people as a whole make the laws would have cost you your head in England in 1713.) Thus, even under the