Thomas, J., dissenting
State; they defined what acts, performed by which constitutional actors, constituted an “exercise of the lawmaking power.” Smiley, 285 U. S., at 364; cf. U. S. Const., Art. I, §7, cl. 2 (describing the processes upon completion of which a bill “become[s] a Law”). In other words, those cases addressed how to identify “the Legislature” of each State. But, nothing in their holdings speaks at all to whether the people of a State can impose substantive limits on the times, places, and manners that a procedurally complete exercise of the lawmaking power may validly prescribe. These are simply different questions: “There is a difference between how and what.” J. Kirby, Limitations on the Power of State Legislatures Over Presidential Elections, 27 Law & Contemp. Prob. 495, 503 (1962).
This is not an arbitrary distinction, but one rooted in the logic of petitioners’ argument. No one here contends that the Elections Clause creates state legislatures or defines “the legislative process” in any State. Smiley, 285 U. S., at 369. Thus, while the Elections Clause confers a lawmaking power, “the exercise of th[at] authority must” follow “the method which the State has prescribed for legislative enactments.” Id., at 367. But, if the power in question is not original to the people of each State and is conferred upon the constituted legislature of the State, then it follows that the people of the State may not dictate what laws can be enacted under that power—precisely as they may not dictate what constitutional amendments their legislatures can ratify under Article V. See Leser, 258 U. S., at 137.[1] Ac-
- ↑ The majority states that Smiley “already distinguished” Leser as involving a nonlawmaking function. Ante, at 21. But Smiley distinguished the “electoral,” “ratifying,” and “consenting” functions of state legislatures from their “lawmaking” function under the Elections Clause, 285 U. S., at 365–366, only to explain why the last function must be “exer-
