Just before Christmas, the Jan. 6 Committee specifically referred two people for prosecution to the Department of Justice: twice impeached ex-President Donald Trump and former Chapman University law professor John Eastman, who was forced to resign days after the insurrection. The fact that Eastman alone was specifically named alongside Trump indicates just how significant a role he played — a role founded in misguided, willfully narrow readings of the Constitution that Eastman has inherited from a lineage dating back to Barry Goldwater’s vote against the 1964 Civil Right Act, based on William Rehnquist’s insistence that it violated the Constitution.
Eastman first argued that GOP-controlled legislature in states Joe Biden narrowly won could unilaterally determine that Biden’s victory was marred by fraud or illegality — based on their own judgment, regardless of any court rulings or evidence — and then choose slates of electors representing Trump, because they had “plenary” power to act without any outside check. This argument is an extreme form of what’s known as the “independent state legislature theory” (ISL).
When no legislatures followed that plan, Eastman drafted a memo laying out options for Vice President Mike Pence that involved either delaying certification of Biden’s victory or certifying Trump as the winner. As Eastman wrote in the Claremont Review of Books, fall of 2021, his version of the ISL was the “whole foundation” for the argument in his memos. “Remove that foundational premise, and I would not have made the arguments I did,” he wrote.
Because courts and election officials made changes to election procedures in response to COVID-19 and other circumstances — as routinely happens in American elections to enable citizens’ votes to be cast and counted — Eastman argued that the law had been broken, and no electors legally appointed. Only the legislature could have made such changes. Because it had not, everything that everyone else thought was legal was illegal, and thus he argues his innocence: “[T]rying to prevent illegal conduct from deciding an election is not a ‘coup.’”
But that’s not how anyone else saw it. In a ruling on communications between the two last March, District Court Judge David Carter noted that “Dr. Eastman heard from numerous mentors and like-minded colleagues that his plan had no basis in history or precedent.” Further, he wrote, “this case is a warning about the dangers of ‘legal theories’ gone wrong, the powerful abusing public platforms, and desperation to win at all costs. If Dr. Eastman and President Trump’s plan had worked, it would have permanently ended the peaceful transition of power, undermining American democracy and the Constitution.”
The ISL relies on the language of Article II of the Constitution, stating that “[e]ach State shall appoint, in such Manner as the Legislature thereof may direct,” electors for President and Vice President. However, there’s clear precedent that “legislature” is meant to be broadly construed — similar language in Article I was found to be subject to a governor’s veto in a 1932 case for example. Citizen referendums also qualify, according to a 1916 case. But Eastman, typically, has no problem ignoring hundred-year-old precedents.
Eastman first advanced the ISL more than 20 years ago, during the 2000 post-election contest. He told a special committee of the Florida state legislature that they had “plenary power” to appoint presidential electors, and no one could overrule them. The Florida House acted on his advice, voting 79-41 to approve a George Bush slate of electors, but the Senate delayed until the Supreme Court decision in Bush v. Gore removed the need to act, and the legislature’s effort was virtually forgotten until now.
Eastman wasn’t alone in advancing the ISL. A less extreme version was embraced by a conservative three-justice minority of the Supreme Court in the Bush v. Gore case — Chief Justice William Rehnquist, and justices Clarence Thomas and Antonin Scalia. But they’re more similar than different in how they go wrong, and Eastman shares deep historical ties with both Thomas and Rehnquist involving the Claremont Institute, which he’s been associated with since his undergraduate days in the early 1980s, shortly after its founding by four students of Harry Jaffa, a noted Abraham Lincoln scholar. Thomas has similarly long-standing ties with it as well. Both credit it with helping to shape their legal/political worldviews.
Jaffa had become distressed by the institute before his death in 2015, according his son, Philip, quoted in a Washington Post story last summer, saying, “What they are trying to do is put a top hat on Jefferson Davis [the leader of the Confederacy] and call it Abraham Lincoln and the dust cover of the ‘Nicomachean Ethics’ on ‘Atlas Shrugged’ and call it Aristotle.”
But Jaffa himself was a proud extremist, who helped propel the GOP’s transformation from the party of Lincoln to the party of Davis. He penned Barry Goldwater’s most famous speech, with his signature call to arms, that “extremism in the defense of liberty is no vice” and “moderation in the pursuit of justice is no virtue,” which his son revealed in 2021 was inspired by Dr. Martin Luther King Jr.’s “Letter From Birmingham Jail.”
However well Jaffa convinced himself otherwise, it was an act of political theft. The “freedom” Goldwater would defend was the freedom to deny freedom to Black people. “While not himself a racist, Mr. Goldwater articulates a philosophy which gives aid and comfort to the racists,” King said at the time. Aside from his native Arizona, Goldwater only won five Deep South states, a dramatic reversal of 20th-century voting patterns up to that time. Perhaps his strongest calling card was his vote against the Civil Rights Act of 1964, on the advice of William Rehnquist, who argued that it was unconstitutional.
Fast forward to 2000, and Rehnquist is Chief Justice, alongside Clarence Thomas. While a 5-4 majority voted to halt the Florida recount based on a novel, harshly-condemned 14th Amendment equal protection argument, Rehnquist, Thomas and Scalia turned to the ISL in a concurring opinion, which flew below the radar for most legal commentators amid a flood of outraged responses to the decision itself. A small handful of prominent conservative legal figures defended the result, though not the decision, which gave the ISL a little-noticed boost, constitution law professor Vikram Amar told Random Lengths news.
“There was in the aftermath of Bush versus Gore a kind of movement by the intellectual leaders of the conservative movement to want to provide a seemingly more textual and seemingly more historically grounded explanation for the court intervention,” Amar explained. But the broader legal community largely ignored these efforts, as there seemed to be no point, other than making the Bush v. Gore decision look less embarrassing.
This neglect lasted almost 20 years, until Amar and his brother, Akhil Reed Amar, wrote a devastating critique in the 2021 Supreme Court Review, “Eradicating Bush-League Arguments Root and Branch: The Article II Independent-State-Legislature Notion and Related Rubbish.” They show, in painstaking detail, how the ISL fails by the very approach its advocates endorse: an originalist analysis involving text, history, structure and judicial precedent.
I asked Amar about Justice Stevens’s dissent, which said that “Article II … does not create state legislatures out of whole cloth, but rather takes them as they come-as creatures born of, and constrained by, their state constitutions,” citing an 1892 case, McPherson v. Blacker, stating that “[w]hat is forbidden or required to be done by a State” in the Article II context “is forbidden or required of the legislative power under state constitutions as they exist.”
“Stevens is right in getting where he gets,” Amar told me. “He just doesn’t really provide a sustained argument that kind of could nip ISL in the bud,” which “left the door open” for conservative law professors to breathe new life into the ISL. That kind of sustained argument is just what Amar and his brother provided. More recently, they joined a deafening chorus of amicus briefs spanning almost the entire legal spectrum when the Supreme Court considered the ISL in the case Moore v. Harper, where the North Carolina legislature sought to invalidate the state supreme court’s oversight regarding an illegally gerrymandered map.
And here, the ground shifted once again. In its full-throated form the ISL would allow the legislature a free hand, barring any restraints by state courts, the governor or even the state constitution. But when Chief Justice John Roberts asked the legislature’s lawyer if governors can veto state laws that regulate federal elections (as the court had ruled in 1932), the lawyer agreed, essentially abandoning the full-throated ISL.
“When the extreme version was thought to have some political traction, people embraced it. But as its flaws got exposed powerfully one after another, that led its advocates to realize hey you’re not necessarily gonna win Barrett and McConnell and Kavanaugh and Roberts over this,” Amar summarized. “So we have to have some kind of a fallback position even though that’s equally incoherent and equally unprincipled.”
In a column for Justia.com, he characterized the fall-back position thus:
ISL has morphed from special federal protections for ordinary, elected state legislatures to special federal limitations on state courts. The operative theory should thus be renamed from ISL to SJD (“State Judge Distrust”).
Yet, while the larger legal community and its conservative activist wing have shifted back and forth, Eastman has remained adamantly unmoved, as reflected in the amicus brief he wrote for Moore v. Harper. He reaffirmed his claim that the legislatures’ power is “plenary,” and argued that three previous Supreme Court cases, dating back to 1916, had “misconstrued the Constitution’s clear assignment of authority to the ‘legislature’ to instead mean ‘the legislative authority,’ wherever it is vested by a state’s own constitution.”
What’s more, most ISL proponents have argued that state legislatures can act unilaterally before election day, but “Eastman, nut job that he is, seems to even ignore that temporal limit and think that the state legislature can do things after the congressionally-prescribed timeline of election day,” Amar pointed out, which is why he calls Eastman’s version, “ISL on steroids”
On the one hand, Eastman is an almost clownish fist-shaking figure ala Rudy Giuliani, who introduced him speaking at the Jan. 6 “Stop the Steal” rally, where he falsely claimed that “we know there was fraud” and “we know dead people voted,” and described a fantasy description of how machines were being used to perpetrate that fraud. Then he made his ISL-based pitch, inverting lawlessness and lawfulness: “All we are demanding of Vice President [Mike] Pence is this afternoon at 1:00, he let the legislatures of the states look into this, so we get to the bottom of it, and the American people know whether we have control of the direction of our government or not! We no longer live in a self-governing republic if we can’t get the answer to this question.” That’s the wild-eyed fist-shaker speaking.
On the other hand, Eastman has known Clarence Thomas for almost 40 years, the two speak very highly of each other, claiming very similar worldviews. Eastman is an indicator of just how little difference there is between the wild-eyed extreme fringe and the center of the conservative legal universe. Both profess to ground their outlooks in a belief in natural law. Both have nothing but disdain for anyone who disagrees with them. Both effortlessly dismiss any precedent that contradicts them. Both are ultimately lawless men.