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Noah Feldman is Haunted By Justice Scalia's Vote in Bush v. Gore

Scalia joined Rehnquist's Bush v. Gore concurrence, which introduced the Independent State Legislature Doctrine.

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I have long admired Noah Feldman as a sober arbiter of constitutional law. Recently, however, his writings have been littered with elemental mistakes and salacious speculations. Continuing the trend, Feldman's latest column left me scratching my head.

It is titled, "Scalia's Ghost Is Haunting Conservative Justices." The subhead is "The late Supreme Court giant united his philosophical heirs behind theories of originalism and textualism. Now those ideas are becoming a source of conflict." The thrust of the piece is that there is some tension between textualism and originalism, and the Court's conservatives are apparently dividing over that tension.

In a sense, textualism is a form of anti-originalism. It stands for the idea that, to understand a law, you shouldn't ask what the legislature meant to say or what the law's purpose is. You should just look at what the law says. Textualists usually insist they aren't literalists, following the words to absurd conclusions. But the embarrassing truth is that they have no convincing theory of how to avoid following the words literally, because they can't rely on intent or purpose to say what result is absurd and what result isn't.

I've been studying originalism and textualism for some time. I have no idea what Feldman is talking about.

The hook of the column concerns the independent state legislature doctrine. And he posits that in Moore v. Harper, Justices Thomas, Alito, and Gorsuch departed from Justice Scalia's jurisprudence.

Three conservative Supreme Court justices declared this month that the Constitution should be read to give state legislatures unlimited control of electoral procedures, and a fourth said the issue is important enough for the whole court to consider. That's scary because it could eventually block even state courts from stopping partisan cheating.

What's most important about the issue, however, isn't the remote (for now) danger that a majority of the court might make a disastrous decision that undermines democracy. It's the new kind of reasoning that the conservatives are using to reach their preferred result.

It's a legal theory that departs from the method of constitutional interpretation favored by a generation of conservative legal thinkers, originalism. That's the idea championed by the late Justice Antonin Scalia that the intentions of the framers should determine the meaning of the Constitution.

And, of course, Feldman offers heaps of praise on Justice Barrett who did not join her "radical" colleagues.

Justice Amy Coney Barrett's silence hints that she may turn out to be the truest Scalian on the court: textualist in statutes but originalist in constitutional law. You can be sure she looked at the historical evidence before deciding to vote against hearing the case. And it is overwhelmingly likely she saw that the evidence did not support the Alito position. A former law clerk to Scalia, she didn't want to commit the fallacy of being a textualist in a constitutional case.

Feldman continues to try to spin the Court's more moderate members. (Narrator: It won't work.)

Mentioned nowhere in Feldman's column is an important fact:  Justice Scalia, as well as Justice Thomas, joined Chief Justice Rehnquist's concurrence in Bush v. Gore. This opinion was the fountainhead of the independent state legislature doctrine. Rehnquist wrote:

In most cases, comity and respect for federalism compel us to defer to the decisions of state courts on issues of state law. That practice reflects our understanding that the decisions of state courts are definitive pronouncements of the will of the States as sovereigns. Cf. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Of course, in ordinary cases, the distribution of powers among the branches of a State's government raises no questions of federal constitutional law, subject to the requirement that the government be republican in character. See U.S. Const., Art. IV, § 4. But there are a few exceptional cases in which the Constitution imposes a duty or confers a power on a particular branch of a State's government. This is one of them. Article II, § 1, cl. 2, provides that "[e]ach State shall appoint, in such Manner as the Legislature thereof may direct," electors for President and Vice President. (Emphasis added.) Thus, the text of the election law itself, and not just its interpretation by the courts of the States, takes on independent significance.

Feldman wrote a 1,900 word column arguing that Scalia would have rejected the independent state legislature doctrine, but did not mention that Scalia joined the opinion that endorsed that doctrine. Justice Alito's concurrence cited Bush v. Gore as the original case in a string cite!

This case presents an exceptionally important and recurring question of constitutional law, namely, the extent of astate court's authority to reject rules adopted by a state legislature for use in conducting federal elections. There can be no doubt that this question is of great national importance. But we have not yet found an opportune occasionto address the issue. See, e.g., Democratic National Committee v. Wisconsin State Legislature, 592 U. S. ___ (2020); Scarnati v. Boockvar, 592 U. S. ___ (2020); Moore v. Circosta, 592 U. S. ___ (2020); Wise v. Circosta, 592 U. S. ___ (2020); Bush v. Gore, 531 U. S. 98, 112 (2000) (Rehnquist,

C. J., concurring); see also Republican Party of Pennsylvania v. Degraffenreid, 592 U. S. ___ (2021) (THOMAS, J., dissenting from denial of certiorari); id., at ___ (ALITO, J., dissenting from denial of certiorari); Wisconsin State Legislature, 592 U. S., at ___ (GORSUCH, J., concurring).

Of course, the Rehnquist opinion didn't spell out its reasoning in any length. And there are differences between the Bush v. Gore concurrence, which involved presidential elections, and Moore v. Harper, which involved congressional elections. But the basic legal question remains: what is the "Legislature" for purposes of the Elections Clause?

Perhaps the one salient point of this column is to stress how important Justice Scalia remains to our constitutional discourse. Most Justices leave the bench and their precedents fade quickly. Indeed, Randy and I are in the process of removing cases for the 2nd Edition of our 100 cases book. The constitutional canon continually adjusts. But what remains is a Justice's contributions to jurisprudence. Decisions about particular controversies fade, but approaches to thinking about the law remain.

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  1. Josh is puzzled by, "It stands for the idea that, to understand a law, you shouldn't ask what the legislature meant to say or what the law's purpose is. You should just look at what the law says."

    The lawyer believes not just in mind reading, but in mind reading of dead people. The purpose of the law is the writing, so people may rely on it. If unclear, or absurd, or wrongheaded, change the law. No puzzlement is needed.

  2. This may be a naive question, but didn't the SCOTUS say, in Bush v. Gore, that its findings and rulings were meant for this one case only, and should not be used as a precedent or template by any court in any future case? If that's true, then why does it matter who joined with whom, and why should it serve as a fountainhead for anything?

    1. This may be a naive question, but didn't the SCOTUS say, in Bush v. Gore, that its findings and rulings were meant for this one case only, and should not be used as a precedent or template by any court in any future case?

      It's certainly a silly question, since the text of the opinion is easily available online (scotuslink.com/531/98 for instance), so you can easily read it yourself and discover that the court did not say that.

      1. I think the usual argument is the first half of the second sentence of this paragraph applies to the entire ruling:

        The recount process, in its features here described, is inconsistent with the minimum procedures necessary to protect the fundamental right of each voter in the special instance of a statewide recount under the authority of a single state judicial officer. Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.

        That argument doesn't strike me as very sound because it reads out too much context. There are a lot of general statements in the ruling.

    2. IMT, I remembered it that way too. If that was not said in the decision, there was something said informally by the Court, or maybe just some news reporting, founded or unfounded. I know it was a thing. I have heard it referred to from time to time, at least several times since. Anyone know the source?

      1. I don't know the source, but I recall the same as SL and note that the comment was made in the immediate aftermath of the decision

  3. This is some really kooky stuff. Originalism is basically the same as textualism. Textualism brings you as far as "let's go by the text." Ok, and what does the text mean? Well, if it's not just whatever we feel like deciding, then it's what it meant originally. The "intentions" of the framers aren't dispositive (and are sometimes disparate), they're just the most relevant body of evidence.

    "[Originalism is] the idea championed by the late Justice Antonin Scalia that the intentions of the framers should determine the meaning of the Constitution."

    Nah. Originalism is the idea that the meaning of the Constitution doesn't change until it's properly amended.

    1. Hi, ML. How about starting with Article I Section 1? Do you find anything puzzling in "all" lawmaking powers belonging to Congress? "All" is a first grade vocabulary word. Yet, we have judicial review, where a law is repealed. We have executive regulations, where 10000 pages of lawmaking takes place without authorization each year. The congress should approve both or they are void, so says, the text. No mind reading is necessary, just graduation from the first grade.

      1. In the second grade, you learn that "all" is a predeterminer qualifying the proceeding phrase; in this instance "legislative Powers." What such a power actually entails is a historical one, not a superficial analysis of brute word-stringing as you seem to think it is.

        1. 135 times the Supreme Court said, the meaning of a word is its dictionary definition.

          legislative
          lĕj′ĭ-slā″tĭv
          adjective
          Of or relating to the enactment of laws.
          Resulting from or decided by legislation.
          Having the power to draft and enact laws; intended to legislate.
          The American Heritage® Dictionary of the English Language, 5th Edition.

          1. If you don't know the fundamental premises of the debate and mix up things as simple as plain-meaning rule for STATUTES (read: not the Constitution), I can't really engage with you. SCOTUS does not venture to reduce historical terms of art to dictionary meaning, and when they do it's because the plain meaning and the historical meaning are the same. Interlocution requires not being ignorant of how the subject works at a basic level. Have a good evening.

          2. Hi David. Accepting arguendo the definition you provide and that it is what is intended by the Constitution, it only applies to the enactment of laws. It says nothing about who is to execute them, enforce them, or judge whether or not they have been violated and if so what the penalty should be.

      2. Do you find anything puzzling in "all" lawmaking powers belonging to Congress?

        Then why does the President get a veto? Why did members of Congress and the President allow the Supreme Court to rule acts of Congress to be unconstitutional?

        Having the lawmaking powers vested in a legislature does not mean that this power is unchecked. It is quite clear from the history that the idea of judicial review existed prior to the adoption of the Constitution. It was even brought up in debates at the Constitutional Convention. That state courts can review acts by state legislatures for whether they are consistent with the state and federal constitutions is not at all controversial. The argument of the Independent Legislature Theory that would do away with that is taking the wording of the Constitution to an absurd result. No branch of government gets completely unchecked power in the United States.

        1. Those are all good points. They require an amendment.

        2. "Why did members of Congress and the President allow the Supreme Court to rule acts of Congress to be unconstitutional?"

          Why? Because those were controlled by lawyer deniers and people who just make shit up to enrich and to empower themselves from rent seeking. Judicial review and executive regulation not approved by Congress is insurrection against the constitution. The punishment for such should be mandatory summary execution in the court basement.

          Beside denial of the definition first grade vocabulary word, the lawyer is in denial of the hideous, catastrophic results, like the Civil War from Dred Scot, the slaughter of 63 million babies from Roe, and the transfer of $trillions of US wealth to China, to fund its now superior military. When we get attacked, all scores get settled with the internal traitors.

        3. Then why does the President get a veto? Why did members of Congress and the President allow the Supreme Court to rule acts of Congress to be unconstitutional?

          That the Congress is vested with "all legislative powers herein granted" is a different idea from the idea that the Congress is vested with legislative omnipotency.

          The first idea is quite consistent with limits on Congressional lawmaking power (such as the President being able to stop it legislating, or the courts being able to mention that Congress seems to be legislating outwith the powers "herein granted" - such as, for example, by attempting to make a law abridging the freedom of speech.) All that the first idea requires is that nobody else exercise any of the legislative powers "herein granted." And the power to veto legislation is not a legislative power, it is a power to prevent Congress legislating.

          The second idea is not consistent with such fetters.

          However, the Constitution does contain certain specified exceptions to Congress's exclusive legislative power - and in precisely the spots that Feldman is worried about. The Constitution clearly grants legislative power to the Legislatures of the States to determine the methods of choosing Presidential Electors and members of Congress. That's a legislative power, and whatever view you take of what "Legislature" means in this context, nobody pretends that it means the federal Congress.

      3. Judicial review does not repeal a law.

        It's still on the books, just not judicially enforceable.

        1. What is that? Denier talk. Have a blessed day. Grow up.

          1. Denier talk? Grow up?

            Says the guy who cannot get even the basics right and thinks judges repeal laws.

      4. Well I agree that administrative law is unlawful, as Philip Hamburger put it. There's a question about judicial review, too, but it wouldn't matter so much if the federal judiciary didn't assume jurisdiction over every aspect of modern life.

    2. ML, you want to live in your pretend lawyer world, in total insurrection against the constitution. That justifies the arrest of the 25000 traitors in the lawyer hierarchy. The penalty for insurrection should be changed to mandatory summary execution, so we may be rid of this pestilential plague on our nation.

    3. It's an even more egregious error than that. Scalia did NOT believe in original intent! He was the foremost expounder of original public meaning. Feldman's article fundamentally misrepresents Scalia's jurisprudence.

      1. Feldman's article fundamentally misrepresents Scalia's jurisprudence.

        I noticed that as well. But here's the thing:

        Scalia did NOT believe in original intent! He was the foremost expounder of original public meaning.

        Whether originalism is based on the original intent of those that wrote the Constitution and its amendments or whether it is based on how the 'public' understood them at the time that they were ratified, it is calling on judges to divine what a large and diverse group of long dead people believed and understood. It is one thing to take the writings we have now of individuals from those time periods and reconstruct what they believed a particular provision of the Constitution to mean. It is a Herculean task to try and do the same for the entirety of American society in those times. It is a task obviously subject to the biases of the judges that aren't even trained historians.

        1. I'll quote Scalia's own words here: "Originalism done perfectly might well take thirty years and 7,000 pages.” I think that originalists ultimately do have to accept that it is a historically and logistically intensive endeavor—one that may never well reach a satisfactory consensus. That is a necessary limitation of working with history generally and working with society-wide meaning especially. I ultimately think it's a limitation that does not set aside the value of public-meaning originalism, but reasonable minds can differ.

  4. I've been studying originalism and textualism for some time. I have no idea what Feldman is talking about.

    Professor Blackman, take advantage of the opportunity to contact an actual historian. Any first-rate academic historian will find Feldman lucidly clear, and could readily explain it to you.

    1. A "first-rate academic historian" is probably thoroughly unqualified to assess the legal issues that Feldman is having problems with.

      1. A "first-rate academic historian" is probably thoroughly unqualified to assess the legal issues that Feldman is having problems with.

        And lawyers are fully qualified to do history?

        1. We are talking about the last 22 years, not some obscure bit of the 17th or 18th century.

          Does Feldman's column even admit that sometimes text can be ambiguous, and so textualism comes with built-in limits? Or is it too busy drawing a bright line between textualism and other approaches?

      2. Historians are all left wing biased crazed servants of the Chinese Commie Party. Historians will always support Big Government and the lawyers who love it. Their salaries come from government, directly or indirectly, through exempt funding. Historians have an irremediable conflict of interest and are worthless.

      3. A "first-rate academic historian" is probably thoroughly unqualified to assess the legal issues that Feldman is having problems with.

        Absent a historian with a legal education, I doubt you would find any who would pretend to any legal expertise, or venture to do legal assessments. I wish the reverse were true, and it were impossible to find lawyers who would presume to do historical analysis.

    2. A (or is it an) historian is going to be of zero help to you here. What you need is a philosopher :

      https://www.illinoislawreview.org/online/literalism-in-statutory-interpretation/

      1. Lee Moore, that is a useful and relevant essay. But you are mistaken about, "zero help." The essay you recommend and link to suffers from a present-minded approach to context, while forthrightly conceding its importance.

        Historians are the scholars equipped to step in and shore up the essay you linked. Unresolved problems have to do with insight into context across disparate time frames.

        Historians' insights into those problems bring to light complications which historical laymen never suspect. They are not issues to be looked for on the margins. They go to the very core of the orginalist/textualist enterprise. For a definitive philosophical treatment of that issue, see philosopher/historian Michael Oakeshott's, "On History."

        It is an extended essay, published in 1983 as a forthright philosophical critique of unsuspected logical flaws which too-often compromise historical reasoning about issues such as context, causality, and selected other topics. Oakeshott wrote with an eye to describe sounder methods—ones which could bypass problems inherent in pseudo-historical notions inadvertently introduced by reliance on self-contradictory present-minded methods. There is not a hint of discussion of originalism or textualism in Oakeshott's little book. Nevertheless, it all but destroys expectations that much legitimate use can be had out of either method.

    3. Not quite sure what history has to do with the matter? Textualism and originalism are contemporary terms with contemporary meanings. If anything, a law professor (like Prof. Blackman) is vastly more qualified to speak on the matter than some random academic historian.

      1. Almost the entire legal profession is unsure of what history has do with the matter. That is the problem in a nutshell.

        You make a mistake if you think I suggest substituting historians for lawyers. You would be hard pressed to find any professional historian who would presume to do that even slightly. I do suggest that the originalism/textualism problem includes a major historical dimension which cannot be got rid of—and that lawyers typically do not even suspect that problem is there, let alone possess the knowledge and training necessary to deal with it.

        1. To be fair, you just wrote that most historians don't possess the knowledge to deal with it either. It's spectacularly silly to suggest that we should delegate our understanding of laws to a small fraction of historians.

          1. Michael P, I did not suggest that.

            What we should do is found our understanding of laws on the best principles we can bring to bear. On that basis, it is reasonable to tell lawyers, "You get to make the legal decisions according to legal principles, because you are best qualified on those questions.

            But you do not get to make factual decisions according to legal principles alone. Those require contributions made by people who better understand the facts, and the law has to live within the facts.

            If you think about that, you might even discover in it an echo of the way legal principles order court trials.

  5. A stirring tribute to Antonin Scalia, who fought ably but was just another culture war casualty on the wrong side of history.

  6. What a great decision, whenever I get depressed, just pull up Bush v. Gore, such genius, shoving the Equal Protection Clause up Gore and all his toadies collective Ani, reminds me of Bono's version of "Helter Skelter" "Charles Manson stole it from the Beatles, we're stealing it back" "Al Gore stole it from Bush, we're stealing it back!"
    Personal Note, voted Absentee from Okinawa in 2000, sort of a hassle getting an Absentee Ballot mailed from Pensacola to Japan in dial up Internet times, and mailed back in time, probably the only vote in my life that made a difference.

    1. Lol, you support a president that lied us into an asinine war while mismanaging another war all the while selling us out to China…but at least we spent $5 trillion for a Muslim girls robot team. Oh, and at least two men still can’t get married. 😉

      1. better than that Stiff AlGore, would have preferred Perot, but didn't run.

        1. You must hate America…Bush was the worst president in history.

  7. When a case gets to an appellate court, particularly if it's the Supreme Court, the chances are that the application of the law to the facts/allegations is uncertain (not always: Some litigators are unreasonable, but usually there's uncertainty). If the case involves a statute, then the court has to decide what the statute means in the context of this case, and having done so, whether there is a basis for holding the statute invalid. If the case involves a Constitutional provision, then the first issue, what the provision means in the context of this case, is crucial, because if the Constitution says X, the court isn't empowered to say that's invalid.

    I understand Scalia's majority opinion in Heller to be a good example of "Originalism". One part of that originalist analysis addressed the issue of whether the reference in the 2d Amendment to the "militia" meant that the right to bear arms was limited to the right to bear arms as a member of the organized militia, i.e., nowadays the National Guard. The opinion explained in originialist terms why that's not what the Amendment means. If you don't like that result, you can do your own analysis and try to support a contrary conclusion. What you shouldn't do is argue that guns are bad and no civilian should have one. That ship has sailed.

    BTW that also applies to the right to abortion. If you think Roe and Casey are wrong, you need to show that, not just whine.

    1. Sure, the drafters of the 2A wrote an amendment specifically to protect Americans in DC and federal territories. Wow.

      1. Exactly, Sebastian! A Constitutional Amendment with such a narrow reach might not have been worth the trouble. Before the 9th and 10th Amendments, federal restrictions on the right to bear arms in the States might have been argued to be valid. So the 2A closed that door. Thanks.

        1. You are ignoring the text of the 2A which according to Scalia states a well trained and armed unorganized militia is NECESSARY to the security of a free polity and so the RKBA shall not be infringed…and yet the states started infringing the RKBA early on. Furthermore, Scalia asserts that the 2A protects an individual right but at the same time the BoR didn’t initially apply to the states. Ipso facto—2A was drafted to protect Americans in DC and federal territories.

          1. Actually intelligent people have explained to you repeatedly why this is wrong.

            "The Bill of Rights didn't initially apply to the states" — not an invention of Scalia's, but rather something said by the Supreme Court 103 years before he was born — is not the same thing as "the Bill of Rights didn't initially apply in the states."

            1. Once again—you are pretending the prefatory clause doesn’t exist. Scalia wished it didn’t exist…but because it does exist he attempted to make it meaningless…but by trying to make it meaningless he gave it a meaning that undermined the outcome he wanted to achieve…too cute by half.

              1. Nothing in what I just wrote turns on whether the prefatory clause exists.

          2. You don't provide any support for your "yet the states started infringing the RKBA early on", but as we've been reminded repeatedly, other than with abortion, no constitutional rights are absolute. So you'd have to share why you think such cases are relevant to undermining Scalia's premise in Heller. Heller specifically recognizes limits to this individual right.

            Perhaps while you're at it, you could also explain why same-sex marriage continued to be infringed upon for a 150 years after the 14th amendment was ratified. And why, in the meantime, given broad nuanced holdings of equal protection, why it was necessary to ratify the 19th amendment? Because if "bans" (or ridiculous description) on same-sex marriage violate equal protection, most certainly denying women the vote also does.

            It does appear that a constitutional right can lay dormant for decades, even centuries, without notice. Failure to recognize, or blatant infringing, does not on its face make it less legitimate a right. Them's the rules, I didn't make'em, I'm just living into the tension.

    2. After you read Scalia's opinion, be sure to read the dissent by Stevens. He pokes so many holes in Scalia's reasoning that it's hard to do anything but laugh at Scalia.

      1. MoreCurious, in that dissent Stevens shows himself far more adept at valid historical reasoning than the vast majority of lawyers. Not actually fully competent at it, mind you, but much, much better than his peers. Also, Stevens was undoubtedly handicapped by having to conform his critique to Scalia's historically bogus framework. There is a point where malfeasance goes past mere error, and arrives at chaos. Chaos can be almost impossible to disentangle, and that is what Scalia achieved with Heller.

        1. Stevens’ dissent is equally as absurd as Scalia’s majority—because Stevens isn’t a strict constructionist!?! Stevens’ McDonald dissent is the best opinion of the bunch but in the end his opinion is undermined by partisan hackery.

          1. SC, help me out. Are you suggesting that so-called strict constructionism is necessarily identical to, or proof of, or in any way connected to, valid historical reasoning? The last of those could happen of course. A problem is that it rarely does happen.

            1. Stevens didn’t employ strict constructionist analysis in his McDonald dissent. So Stevens employed a judicial philosophy to get the result he wanted in Heller which is equally as bad as what Scalia did.

              1. SC, you still do not seem to focus on my critique, which is about the indispensable role of historical analysis in any flavor of originalism, or textualism. There is no escape from the fact that every utterance made during the founding era depends for its meaning on context specific to the time and place when and where the utterance was made.

                Any claim to use textualism without reference to history, for instance, must attempt the impossible—which is to explain away overwhelming differences between a present-minded context and a historically founded context. If you have any doubt about the magnitude and disruptive effect of that difference, simply try the mental experiment of a comparison.

                Whatever you know of culture, science, economics, social norms, literature, transportation, philosophy, medical practice, warfare, governance, religion, manufacturing, farming, law, publishing, etc., in the time prior to 1789—which is to say the relevant historical context for every founding era text—compare that to what those various topics have become during the interval between 1789 and the present. Occurrences during that interval—which in 1789 lay entirely in the unknowable future—supply nearly the entire context for any present-minded interpretation.

                Were not all those categories transformed utterly during that interval? You can take that as a warning that the past is notably stranger than you now suppose. What you suppose instead, inadvertently, because you supply modern norms to make the judgment, is that the past was like the present.

                To perform an accurate contextual analysis of a founding era text thus requires subtraction from consideration of everything which happened in the interval between then and now, and the substitution of a generally forgotten world of norms, beliefs, and occurrences prior to 1789. Is that something you suppose most lawyers or judges are capable of doing without expert assistance from historians?

                The very notions present-day lawyers would need to subtract are among their most-used and highly cherished items of mental furniture. They are exactly the items modern lawyers are least aware of relying upon constantly. Nor is that a dilemma peculiar to lawyers. Almost everyone untrained in historical scholarship is as dependent on present-minded analysis as the lawyers are. Why not? It is what works in the present.

                Problems arise only when you try to do critiques across long time intervals, and attempt to do so without forewarning that the pitfalls even exist. Except for historical scholars, almost no one ever tries to do that. It is no wonder at all that present-minded analysis is accepted as a modern norm, even though it is almost incapable of delivering accurate interpretations about meanings from the past.

      2. What holes does Stevens poke, particularly?

        Everything in the Court's opinion (authored by Scalia) proceeds from the premise that the 2A militia encompasses the entirety of the (armed) citizenry. Part of our modern conceit is we've lost sight of a fundamentally reality of 18th century life that people at the time took for granted, and so felt no need to codify in law. Beyond the 2A's addressing the echoes of English history and the Glorious Revolution.

        This doesn't require postdoc level academic history to discover.

        1. 1. Read Scalia's opinion. 2. Read Stevens' dissent. 3. It doesn't require postdoc level academic history to objectively discern the "holes."

  8. Is anyone still arguing that the right decision would be to let the local court order recounts based on new court-created rules in only a few specific counties in the state?

    That behavior basically gives a state’s court the opportunity to rig the presidential election whenever the vote is close. The state court could set up any rules it wants, no matter how outrageously one sided. Pick a few counties where you know you have a partisan disparity and create counting rules to undercount the other party or overcount your party and the result changes.

    Should that be allowed?

    1. Lol, no. At any point Katherine Harris could have done her job and overseen a statewide recount…she didn’t do that because Bush was initially in the lead and so dragging her feet was the best way to achieve the result she desired.

      1. Anything could have happened. It doesn’t make the Bush v. Gore decision wrong.

        If we wanted fair and trustworthy elections we’d create laws to ensure fair and trustworthy elections with hand countable, auditable paper ballots and chain-of-custody procedures.

      2. "Lol, no. At any point Katherine Harris could have done her job and overseen a statewide recount"

        Actually, she didn't necessarily have the power to do. that.

        My understanding of Florida law from what was explained at the time is as follows.

        1. A state wide recount could be authorized if requested by one of the campaigns.

        2. The requesting campaign would have to put up the money to fund the state wide recount.

        My understanding is that Gore thought he could push Bush in to requesting a state wide recount.

        1. Correct, Gore’s strategy was to force Bush to support a statewide recount. Harris had a bully pulpit and she was the official responsible for elections…but she chose to simply drag her feet in order to run out the clock.

          If Bush had been down by 300 votes then Harris would have taken charge and found the funds for a recount. Of course in that scenario Gore would have gone to court over things like standards but he couldn’t stop the recount.

          1. "Harris had a bully pulpit and she was the official responsible for elections…but she chose to simply drag her feet in order to run out the clock."

            She had zero authority to order a state wide recount absent a request for such from one of the candidates/campaigns.

            "If Bush had been down by 300 votes then Harris would have taken charge and found the funds for a recount."

            Baseless speculation. If any of the Partial recounts put Bush down, Bush likely would have requested a state-wide recount.

          2. If that was actually Gore's strategy, his campaign would have been smarter to ask for a statewide recount instead of a narrowly focused one. Since they didn't, I have doubts it was really their strategy.

      3. At any point Katherine Harris could have done her job and overseen a statewide recount…she didn’t do that because

        …it was not in fact in her job and she had no authority to do that.

  9. What you're not considering here is that Scalia was happy to throw his principles out the window to reach conclusions he felt strongly about.

    The idea that the intent of the commerce clause was to allow a federal police force to imprison you for activity authorized under state law because of some butterfly effect where if you hadn't grown a plant yourself, you might have bought it from someone else, and that somehow vaguely might relate to the overall market which might be interstate in nature... that's so ridiculous it would be openly mocked had most other conservatives of the era not similarly agreed with the idea of "drug exceptions" to the constitution.

    Appointing a conservative President would easily mean enough to Scalia to once again set aside any principles he claimed to have. Bush v Gore isn't evidence of anything other than the major political cases being outcome directed.

    1. Exactly. Case in point are NeverTrumpers. So two of the most outspoken NeverTrumpers were Hugh Hewitt and Ben McStain Domenich…once their family members got appointed to executive branch positions they morphed into big Trump supporters. I was actually involved in GOP politics and one thing that was a little surprising was how establishmentarian the Republican activists are—it’s generally because they get jobs at Republican think tanks and have family members that get jobs when Republicans win the White House.

      Btw, all of that easy money sloshing around behind the scenes is also why the GOP tends to attract scam artists like Elizabeth Holmes (Theranos whose father worked for Enron) and Ken Lay (Enron) and Steve Bannon etc.

    2. IANAL, let alone a Constitutional scholar or a philosopher, but I think that Justice Scalia was results oriented, as many/most Justices are, is ably demonstrated by Raich.

  10. In 2018, in a 4-3 party-line vote, the Pennsylvania Supreme Court struck down the congressional maps drawn by the Republican legislature. The court noted that the map was more favorable to Republicans than 100 generated hypothetical maps. And then the court proceeded to adopt its own map, which, to the surprise of no one, was more favorable to Democrats than all 100 maps.

    And now, the North Carolina Supreme Court has followed suit. Partisan gerrymandering by legislatures = bad; partisan gerrymandering by courts = A-OK.

    I'm not sure what Feldman is on about babbling about textualism and originalism, but, strictly textually, a "legislature" is not a "court". As for an originalist analysis, the Founders likely never considered the question, as in the early Republic, no state court would have dreamed about re-drawing a legislative map.

    1. Founders would not have imagined that judges would betray their oaths en masse for partisan reasons. Founders thought oaths of office would be mostly honored instead of mostly ignored.

    2. If the legislature in NC has the power to impeach those judges, all of them should be impeached. If not, the legislature should work toward amending the state constitution to grant them that power — and also to make gerrymandering unreviewable or otherwise not subject to courts redrawing the maps in detail.

  11. For an example of the tension between originalism and textualism being something real and with real impact, and obvious example is Bostock.

    Gorsuch classified his majority opinion as textualist but not originalist, focusing on what the plain words mw
    Ean today, not what Congress originally intended. The dissent was, if one accepta Gorsuch’s characterization, originalist but not textualist.

    There was a real and very clear gap between the two positions. They les to very different outcomes.

    1. No, the majority opinion in Boston is a results driven perversion of ordinary meanings. Even today, firing someone because they are gay or transgender would commonly be considered firing them because of their sexual orientation or identity, not "because of such individual’s race, color, religion, sex, or national origin". And even today, we remember what "expresio unius est exclusio alterius" means.

      Like the famous question about a dog's legs and tail, simply calling something textualism does not make it so

      1. If you don't understand what "because of sex" means, then just say so. If you actually believe what you're saying, then you'd also have to take the position that it's legal under Title VII to fire someone for being in an interracial marriage.

        1. Nieporent, you have to keep checking back. By now, it could be legal for a religious school to do that. Compared to the RFRA types, even an ant lion is an amateur at building slippery slopes.

        2. And? Congress can easily revise the law to include additional protected categories. The Supreme Court does not have that authority.

          1. So you do think that an employer can, consistent with the CRA, say to a black employee, "You're fired because you're married to a white woman"?

        3. I understand what it means. It means the same thing it meant when it was passed.

          Say a mom and pop ice cream shop doesn't want to hire a guy who dismembered himself or wears lipstick and high heels with a beard. Even if the employer would not have made this decision "but for" his sex, that doesn't mean it was "because of" his sex.

          1. That's literally what it means — although the Title VII standard is the lesser "motivating factor," not "but for."

  12. “I've been studying originalism and textualism for some time. I have no idea what Feldman is talking about.”

    Well, textualists claim the only relevant reading of a law is what the words themselves say. But since reading what the words say can result in ludicrous outcomes, textualists then try to say they won’t read the words to lead to a ludicrous outcome. But if the written words are all that matter, textualists must either follow those words wherever they lead, including to ludicrous outcomes, or concede there are other considerations involved in interpreting law beyond the literal text.

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