Among the controversies surrounding the election of the President of the United
States in 2000 is the issue of whether Justice Antonin Scalia's
part in the final ruling of the Supreme Court in Bush v.
Gore is consistent with his general view of constitutional
interpretation.
Fortunately, for this task of comparison, Scalia outlined
his general philosophy of judicial interpretation in his book,
A Matter of Interpretation. Subsequently, he took part
in the particular case of Bush v. Gore.
In his book, Scalia calls himself a "reasonable constuctionist":
a textual originalist who looks reasonably rather than strictly
at the original meaning of the words in the Constitution to
determine its meaning. Some have claimed that the majority
opinion in Bush v. Gore is in conflict with the reasonable
constructionism mentioned in his book.
The two key areas of controversy we will look at are both
found in the Court's Per Curiam opinion: the Fourteenth Amendment's
equal protection guarantee and the safe harbor provision of
3 U.S.C. § 5. While the concurring opinion authored by
Chief Justice Rhenquist also offers a wealth of controversy
relevant to Scalia's consistency, the majority opinion is
what counts, and for the sake of time, we will focus on what
is most important. After we examine the facts and arguments,
we will find that Scalia's part in the final decision regarding
the Fourteenth Amendment equal protection issue is neither
contrary nor contradictory to his general philosophy of constitutional
interpretation, but that Scalia is inconsistent with regard
to the safe harbor issue.
We can prepare the ground for resolution of the issue of
whether Scalia is consistent with a brief sketch of Scalia's
view; later we will look more deeply at those aspects of his
view relevant to Bush v. Gore. In A Matter of Interpretation,
Scalia advocates textualism as the correct method for constitutional
interpretation. While he accepts common-law judicial creationism,
he says judicial creationism and living-constitutionalism
in constitutional-law are responsible for the grim descent
of judicial decision-making over the last seventy years.
For example, living constitutionalists argue that although
the death penalty was not originally proscribed in the Constitution,
the death penalty has become unconstitutional because our
society's view of cruelty has evolved. If the death penalty
is cruel now, Scalia contends, then we ought to pass a new
law abolishing execution, and not stretch the meaning of the
Constitution to suit our present tastes and interests. His
view is that the text of a legal document means just what
the words in it originally meant, and not what a judge thinks
the text ought to mean according to their subjective moral
opinion.
Over the last seventy years, judges have begun to interpret
the Constitution as a flexible, evolving document that changes
as the moral standards of society change. Scalia claims this
practice erodes freedoms guaranteed by the Constitution. The
non-textualist exception to Scalia's textualist view is that
he considers stare decisis a reasonable and useful guidepost
for issuing legal judgments. Thus, the core of Scalia's view
is that the Constitution should be interpreted narrowly and
reasonably according to the text, with some guidance and deference
toward precedent.
Before we decide whether the specific elements of the debate
prove Scalia is consistent, we ought to detour and consider
a more general philosophical problem: consistency. After all,
if we determine his general view and determine his particular
part in the Bush v. Gore decision, we still must consider
the relational property that connects the two if we want to
know whether the two parts bear the relation. What standard
we use to determine whether someone is consistent determines
in no small way the decision we take about whether someone
is consistent. This amounts to defining the concept of consistency.
In order to stipulate the kind of consistency we should expect
Scalia to have, we can look to a stark contrast that can set
the boundaries of the concept.
On the one hand, someone could be considered consistent in
their views even if their views over time are contradictory,
so long as they regularly and predictably contradicted themselves.
Such a person would possess a kind of consistency, namely,
orderly, regular, and incompatible changes of mind.
Thus, one end of the spectrum of consistency is something
that looks like inconsistency. Nobody sensibly expects that
kind of consistency from those on the Supreme Court, so that
is not the kind of consistency Scalia should have.
At the other end of the spectrum of consistency, we find
someone whose decisions exhibit the rigid regularity of a
computer or other information processor--something that always
processes the same information in exactly the same way, and
thus always produces the same result. This is something more
like an ideal case of consistency, and we might like this
kind of consistency from those on the Supreme Court. However,
we are not likely to get rigid consistency from any human,
even a judge, so we would be wise to expect less. So, there
is a middle way, a kind of consistency that is neither excessively
irregular nor impossibly rigid, rather that is reasonably
consistent. In terms of our particular question about Scalia,
we should expect his opinion to be reasonably derived from
the principles in A Matter of Interpretation and not
clearly contrary to them. In general and for the most part
we expect his opinion to be derivable from his principles.
Someone may object to the practice of weakly defining consistency
and say if we loosen or change the definition of consistency,
then we could make practically any decision consistent. If
we make any judge's decision consistent with any belief or
position, there is no reasonable foundation for law because
a citizen cannot determine whether an act is unlawful outside
of a court. Therefore, we ought to hold people to a strict
standard of consistency and see the clear logical relation
between their actual decisions and the beliefs they purport
to base their decisions on.
In response, it is clear that there must be a reasonable
basis for predicting the decisions of judges, and the prediction
can only be based on decisions and other statements made by
judges in the past. What we ought to expect, though, is that
like situations are treated alike, but when judges are faced
with different sets of particular facts, there will inevitably
be room for error in our predictions. Judges like Scalia should
issue opinions that are not inconsistent with their previous
statements, although some difference may exist. If judges
were entirely predictable, then there would hardly be a need
for judges because we could simply know what they would have
said about a given case, and we could act on our guess in
the adjudication of cases. That conclusion is absurd. We do
need judges to decide cases, so there cannot be strict predictability.
There is another fact that complicates the consideration
about which standard of consistency to use: the case. The
subject matter to which a judge is expected consistently to
apply judgment is such that there will inevitably be some
controversy over the result, even if the same basic standards
are used. In other words, it is possible for two judges to
use the same general standard for applying the law to the
circumstances and for the two judges to arrive at different
decisions.
Scalia gives an example of the controversies that might arise
even under similar standards of interpretation. The following
example will also give us a chance to look more closely at
the difference between reasonable and strict construction.
The Supreme Court heard a case involving a man who traded
an unloaded gun for drugs. He was prosecuted for "using"
a gun in a drug transaction, which is a special crime that
made him eligible for a more severe sentence than if he had
simply engaged in a drug transaction without "using"
a gun. The majority of the Court decided the man had "used"
the gun and, by the text of the law, ought to be eligible
for more severe punishment.
Scalia calls the interpretation of the majority "strict
construction." In contrast, exercising what he calls
"reasonable construction," Scalia said that the
words of the statute "to use a gun" meant "to
use a gun for what guns are used for" not merely to use
an empty gun any old way. So, beginning from the same basic
view, namely, that the text of the law ought to guide interpretation
of the law, but Scalia and the majority disagreed. Scalia
even addresses the controversies that can arise among textualists
like him when he says, "I do not suggest
that originalists
always agree upon their answer. There is plenty of room for
disagreement as to what [the] original meaning was, and even
more as to how that original meaning applies to the situation
before the court. But the originalist at least knows what
he is looking for: the original meaning of the text."
Emerging from our consideration of the issue of consistency
is that Scalia ought to issue opinions that are not inconsistent
with his earlier and more general views, that some controversy
is to be expected even under similar standards of interpretation,
and that we would be wrong to expect a greater level of consistency
from judges than is possible under the circumstances. A simple
fact that can help us understand whether Scalia is consistent
is that opinions differ about the meaning of the original
text of laws. Scalia says that some controversy, especially
over the application of the interpretation to particular circumstances,
is to be expected. So, there is no reason to think that simply
because there is controversy over the text, that one side
is inconsistent, even if their views are contrary. Now we
have our expectations for consistency moderated by Scalia's
claim that controversy can arise even within shared standards,
we can move to the particular feature of the decision in Bush
v. Gore.
In light of Scalia's reasonable constructionism, his deference
to stare decisis, and his willingness to accept interpretive
controversy, we can now question whether Scalia's part in
the concurring opinion in Bush v. Gore is consistent
with his textualism. Scalia took part in both the majority,
the Per Curiam opinion, and the Concurring opinion that laid
out additional grounds for the decision to stop the manual
recounts of undervotes that was ordered by the Florida Supreme
Court.
Authored by Chief Justice Rhenquist, the concurrence offers
fertile ground for controversy about Scalia's position, but
the majority opinion also has textualist arguments against
it. We will find contrary textualist conclusions in the majority
and the dissenting opinions, but the basic issue is this:
whether the differences amount to inconsistency on Scalia's
part. Of course, we have already argued that the fact that
disagreement is present does not necessarily mean that someone
is being inconsistent. What remains is to determine is whether,
in this case, something other than judicial impartiality ruled
the day of December 12th, 2000.
The Per Curiam opinion responded to Bush's claim that the
manual recounts ought to be stopped because they violated
the Fourteenth Amendment right to equal protection. The Florida
Supreme Court had ordered a manual recount of the undervotes
in all Florida Counties. The recounts were to be conducted
under a uniform standard set out in FL 102.166 7b: the counting
teams should determine the voter's intent. If manual inspection
of the ballot resulted in a determination of the voter's intent,
then the vote should be counted. The court also ordered the
inclusion of the full manual recount in Palm Beach County
and the results of a partial recount in Dade County in the
certified results. The United States Supreme Court, in the
Per Curiam opinion, ordered the recounts to stop because they
violated the Fourteenth Amendment guarantee of equal protection.
The Court cited five ways in which the rights of the voters
were violated by the Florida Supreme Court's ruling.
Although the Florida Supreme Court provided a uniform standard,
the voter's intent standard, and that standard could theoretically
be instituted fairly, the United States Supreme Court found
that in fact the standard was not applied fairly.
First, there was evidence of intercounty inequality: different
county canvassing board used different specific standards
for determining the voter's intent. Some counties counted
dimpled chads, while others only counted chads with two corners
detached. So, people who merely dimpled their chads, but lived
in a county that accepted dimples would have their vote counted,
while the same people would not have their vote counted if
they lived in a county that ignored dimples. The arbitrariness
of that disparate treatment was ruled unacceptable.
Second, the Supreme Court found evidence of intracounty inequity:
different counting teams within the same county used different
standards for determining the voter's intent.
Third, over time, the standards in a single county had changed.
For example, Dade County revised their standards, at one time
ignoring dimpled chads, and then counting dimpled chads without
recounting all the votes under a single standard.
Fourth, the Florida Supreme Court had ordered only the undercounted
votes to be subject to the manual recount, which left some
110,000 overvotes uncounted, and the machines did not tabulate
the overvotes like the undervotes. This part of Florida's
ruling left some voters who had expressed a clear intent but
whose ballots were improperly punched unfairly ignored.
The fifth reason for the Supreme Court to rule that the recounts
violated equal protection is the Florida Court commanded partial
recounts to be included in the certified totals. This part
of their ruling meant that voters at the top of the counting
stack, so to speak, were counted before those at the bottom
of the stack, and if complete recounts did not for some reason
produce some newly certifiable results, those top-of-the-stack
voters would already have been included and those on the bottom
would be excluded.
Seven justices agreed on the ruling that the recounts violated
the Fourteenth Amendment. We who are concerned with consistency
need to consider two things with regard to the Amendment.
First, in A Matter of Interpretation, Scalia specifically
mentions the Fourteenth Amendment. So, whatever Scalia agreed
to in Bush v. Gore should not be inconsistent with
what is said in his book. Also, Scalia needs to face the arguments
of Stevens and Ginsberg, who both maintain that the recounts
do not violate the guarantee of equal protection. If their
interpretation were more like Scalia's theoretical view, then
there would be a challenge to Scalia's consistency.
In A Matter of Interpretation, Scalia says that "discrimination
on the basis of age, property, sex, 'sexual orientation' or
even
blue eyes or nose rings" is prohibited by the equal protection
clause. Reading the plain text, Scalia considers equal protection
to be a strong guarantee. The only controversy arises in the
determination of what constitutes a denial of equal protection.
For example, he questions whether separate men's and women's
bathroom is a denial of equal protection although, as always,
he suggest that new laws can be passed to guarantee the right
to unisex bathrooms if the voters desire such a law.
In Bush v. Gore, the controversy is over whether or
not those who cast their ballots are entitled to equal protection
guarantees in the manual recounting of their ballots. Scalia
would not be inconsistent if he considered voters in different
large and small counties entitled to the same equal protection
guarantees he affords to people with nose rings. However,
even if voters are entitled to equal protection, the controversy
can still concern whether the different counting standards
constitute a violation of equal protection. Stevens and Ginsberg
say the different counting methods do not rise to the level
of a violation.
Stevens and Ginsberg maintain it is unreasonable, even absurd,
to expect too high a standard of equal treatment among voters
in a national election. Practically considered, there are
too many differences among different places to guarantee complete
equality. Legally considered, Article Two of the Constitution
anticipated the differences between states and, therefore,
left the determination of the method of appointing electors
to the states who merely repeated the act of federalism when
they further delegated the power to control elections to the
county canvassing boards. Thus, the Constitution provides
for differences in treatment from state to state, and we should
not be surprised when states have some variation in the treatment
of their own voters. Furthermore, if we held everyone to the
standard of equality as the Per Curiam opinion requires of
Florida, then the entire national election would be unconstitutional
because no system is perfectly equal. Obviously, the Supreme
Court would not consider the election provided for in the
Constitution to be itself unconstitutional, so we should not
consider the inequality of the recounts in Florida as substantial.
Justices Ginsberg and Stevens' dissents are, in respect to
their equal protection argument, pleasingly practical. However,
their view does not provide a more compelling textualist argument
than that of the Per Curiam opinion. Their practical acknowledgement
of the necessary differences among all counties has limited
significance since the evidence before the Court concerned
only the recounts in Florida. The Court had not been asked
to determine whether the entire election was invalid, only
whether the Florida recounts violated the Fourteenth Amendment.
If it were necessary for the Court to rule on the entire election,
they could still maintain that interstate inequities were
permissible under Article Two, and that the entire election
was therefore valid, as long as no specific inequities like
those in Florida were found. Besides, even if it were possible
that the dissents are right to question the elections in other
states, the decision in Bush v. Gore should be made
on evidence which actually exists and was present before the
court, and not on evidence that might possibly exist but was
not before the court.
Since the text of the Fourteenth Amendment is being read
as a strong guarantee in the Per Curiam opinion, and it would
seem that for Scalia to agree, he would have to be reading
the text too strictly, and not too loosely. Recalling his
example of "using" a gun, we can ask whether his
is an unreasonably strict reading of the equal protection
guarantee.
However, it does seem reasonable to interpret equal protection
strictly in this case. Voting is one of the most revered political
rights in our rebublic, and the right to vote means little
if we count the votes unfairly, so equality in the counting
of votes is a serious enough matter to strongly construe the
equal protection guarantee.
Moreover, in a close election, in which a very small proportion
of unequally counted votes could easily change the outcome
of the national election, the standard for equality should
be even higher than if the inequality had no effect on the
outcome. 110,000 overvotes would be left out of the manual
recounts ordered by the Florida Supreme Court. Obviously,
if there were no difference in effect between an equal and
an unequal counting method, then it would only be a matter
of principle whether to seek pure equality, but if the inequality
could, and the 110,000 uncounted overvotes could make all
the difference, then it should not be by virtue of an otherwise
acceptable inequality that the election is decided.
Thus there can be arguments that the inequality in Florida
does or does not rise to the level of a violation of equal
protection, or that equal protection is strongly or weakly
guaranteed. Interesting as they may be, those controversies
should not distract us from the question of whether or not
Scalia is inconsistent.
The principle in his book is that equal protection extends
to all groups, but what rises to the level of a violation
is not resolved. However, if we consider the arguments of
the majority in Bush v. Gore as the evidence that the
Florida recounts rose to the level of a violation of equal
protection, then we find that Scalia is not inconsistent with
regard to his interpretation and application of the Fourteenth
Amendment. It is certainly more reasonable to think that a
textualist would consider equal protection to mean voters
must be treated the same under the circumstances in Florida.
Ultimately, though, neither the majority nor the dissenting
views fundamentally violate Scalia's philosophy of interpretation,
but the majority opinion concludes that the meaning of the
actual words in the equal protection guarantee are more important
than the reasonable exceptions the words may allow.
The Fourteenth Amendment issue is connected to the safe harbor
provision issue because the court considers the remedy for
the equal protection violation. The United States Supreme
Court ordered that the recounts could not continue without
a uniform standard for determining the intent of the voters
and an orderly timetable for judicial review. Since any recounts
that could be conducted must, in the opinion of the majority
of the Court, be conducted before December 12th, it becomes
a physical impossibility to have any recounts at all. It is
therefore necessary for the court to determine whether the
deadline set for considering the results of a contested election
is final. 3 U.S.C. § 5 suggests to some that the contest
must be resolved by December 12th, while others consider December
18th or even January 6th the real deadline, since the latter
is the day set for the Congress to count the votes of the
Electors. Here we will need to consider the interpretations
of the law made by the Court and whether Scalia can be consistent
in maintaining the December 12th deadline as final.
A peculiar difficulty with the safe harbor issue is that
the issue crosses the boundary between federal law, which
is the domain of the United States Supreme Court, and state
law, which is ultimately interpreted by the Florida Supreme
Court. Article Two of the United States Constitution delegates
the power to choose Electors to the state legislatures. 3
U.S.C. § 5 sets the federal timetable for when the results
of a contest are considered conclusive by the federal government.
States, however, are not necessarily bound to that timetable
since they have been given the power to choose Electors as
they see fit. States could even theoretically abstain from
choosing a President. The boundary between Florida's rights
and their federal obligations is crossed when the Florida
Legislature chose to consider the December 12th deadline final.
According to the Florida Supreme Court, whose decision is
final in these matters, the legislature intended that Florida
"participate fully" in the election in accordance
with 3 U.S.C. § 5. The United States Supreme Court thus
concluded that Florida was indeed subject to the deadline,
but not because the text of 3 U.S.C. § 5 sets a final
deadline, rather, because the Florida Legislature chose the
federal deadline as its own deadline. In fact in its December
11th revised opinion, the Florida Supreme Court said that
the Secretary of State might ignore late returns if they are
filed too late to comply with 3 U.S.C. § 5.
One argument against the claim that the contest-phase recounts
must take place before December 12th is based on reading the
words in the code that establish it as a conditional. Here
is the complete section:
If any State shall have provided, by laws enacted prior to
the day fixed for the appointment of the electors, for its
final determination of any controversy or contest concerning
the appointment of all or any of the electors of such State,
by judicial or other methods or procedures, and such determination
shall have been made at least six days before the time fixed
for the meeting of the electors, [then] such determination
made pursuant to such law so existing on said day, and made
at least six days prior to said time of meeting of the electors,
shall be conclusive, and shall govern in the counting of the
electoral votes as provided in the Constitution, and as hereinafter
regulated, so far as the ascertainment of the electors appointed
by such State is concerned. [Emphasis added]
We could reason that if the determination of the contest has
not been made final before December 12th, the certified results
need not be accepted. The Constitution does not require that
determinations be made before the safe harbor date; it merely
says that if the determination had been made, then the conclusion
would have been final. But if the determination has not been
made, then the conclusion is not final.
That argument seems to make sense until we consider the logical
structure of the claims and recognize the pattern of reasoning
as denying the antecedent, which does not allow us validly
to derive the desired denial of the consequent. The code is
a conditional statement with a conjunction as the antecedent.
Conditional statements are false if and only if the antecedent
of the conditional is true and the consequent is false. Otherwise
the conditional is true. Before we can use logical analysis,
though, we should translate the meaning of truth-values into
legally significant terms. We can translate the truth-values
in this context into terms that involve the law by saying
"true" and "false" are equivalent to "conforms
to the law" and "violates the law" respectively.
So we say that if an action or interpretation of a law results
in violation of the law, the corresponding claim in the law
is false. Conforming to the law occurs in cases in which the
corresponding claim in the law is true of the actions of those
involved.
Now, simplifying the language a little, the code says that
if a State both has a law for determining who won a contested
election (L), and the determination is made by December 12th
(in this case)(D), then that determination is final (F). We
can thus symbolize the code as (L&D) ??F. This sentence
of symbolic logic will be false if and only if both L and
D are true and F is false. So the only occasion on which the
law is violated is the occasion on which there is a law for
resolving contests, and a determination is made, and the determination
is not regarded as final.
So the argument that the results of the contest are not final
says that there is a law, namely FL102.168, but the contest
under that law has not been resolved, and so we should not
regard the determination as conclusive. Before, this seemed
an attractive solution since the consequent seems to rely
on the fulfillment of the antecedent for its truth. Also,
the conditions under which the determination is to be regarded
as final have not materialized, so the contest resolution
is not final.
Logic shows this view to be mistaken. If we look at the truth-conditions
for conditional statements we can see that no violation of
the law will occur whether the determination is regarded as
final or not. In short, since the antecedent of the conditional
is false, entire conditional will be true regardless of the
truth-value of the consequent. The truth table for conditionals
is the final proof, because the Florida case corresponds to
the last two rows of the truth table and the truth-value of
the consequent is not determined, thus the law can be true
and followed, regardless of whether the determination is considered
final:
So, given that no final determination of the contest has
occurred by December 12th, we can know nothing about whether
the certified results of the election should be regarded as
final since the law will be violated neither in the case in
which the determination is regarded as final, nor in the case
in which the determination is not regarded as final. However,
a decision in the case is still available if we look to some
source beyond this part of the Code.
The majority based its decision to regard the safe harbor
deadline as final on the Florida Supreme Court's decision
that the legislature intended to comply with the deadline.
However, we might see December 18th when the Electors meet
to vote as the deadline, or we might look to section 15 of
the Code and consider the January 6th date, the time for the
United States Congress to count the votes as the final date.
In our attempt to remain faithful to the issue of whether
Scalia is consistent, we need further to clarify the issues
in Bush v. Gore. If the issue is whether Florida must
obey federal law and comply with the safe harbor deadline,
then all we need to ask is if Scalia can read 3 U.S.C. §
5 as not reasonably allowing a later date than December 12th.
Let's call this the timing case.
If, on the other hand, the issue is not whether the U.S.
Code demands that Florida comply with the safe harbor date,
but whether Florida law chooses the date mentioned in §5
as a self-imposed deadline, then we need to ask whether Scalia
can read the decision of the Florida Supreme Court as requiring
the deadline to be met. Let's call this the complex case.
In the timing case, Scalia is simply interpreting federal
law, but a different set of factors emerges in the complex
case, namely, what Florida law requires, what legal precedent
there is for the Supreme Court to act, and whether the Court
is within its power when it demands states comply with deadlines
they set or if states can decide the matter of changing deadlines
for themselves.
To resolve the timing case, we need first to recall the above
discussion of 3 U.S.C § 5; because it is a conditional,
the code leaves the finality of the Florida contest indeterminate.
Reading further to 3 U.S.C § 15 we find rules for the
official counting of the Electoral votes by the U.S. Congress
on January 6th. Section 15 refers back to 3 U.S.C. §
5 and says, once again conditionally, if the determination
is made by the safe harbor deadline, those votes count, but
if there is a controversy such that more than one set of Electors
voted at the meeting of the Electors on December 18th, then
3 U.S.C § 15 sets out a procedure for resolving which
electoral votes will count.
Reading the text, January 6th cannot be the deadline for
resolving the controversy and appointing Electors because
the Electors will already have met and voted under §7.
Section 7 does allow the states to decide where and how the
electors meet, but not when: the date is set at December 18th
in this case. Thus, since the later date is not available,
maybe the December 18th date would do. According to the U.S.
Code, December 18th may be possible. Here it is not clear
what the particular justification is for not choosing December
18th rather than December 12th as the final date since the
Code does not clearly state in §5 that December 12th
is final.
The majority opinion in Bush v. Gore, says only that
the Florida Legislature intended to comply with 3 U.S.C. §5,
which, as we have seen, is indeterminate. So, while the timing
issue is difficult to resolve by referring to an ambiguous
Code, Scalia cannot be reasonably said to ignore the plain
text of the Code in agreeing with the majority. The plain
text of the Code is ambiguous. Besides, it is not the timing
issue, but the complex issue that the Court based its decision
on.
The complex issue is that the Florida Legislature intended
to comply with the safe harbor deadline. In order to say Scalia
is not inconsistent, we must accept the Supreme Court's contention
that Florida law requires Florida's Electors to be chosen
by the safe harbor date and, therefore, that the original
meaning of the U.S. Code does not apply. All that matters
is what the Florida Legislature intended. However, we cannot
accept the view that the Florida Legislature intended December
12th as the deadline, because the legislature did not say
December 12th, they said they wanted to comply with 3 U.S.C
§ 5, but what 3 U.S.C. § 5 requires is, as we have
seen, indeterminate. So, the Florida Legislature intended
to comply with an ambiguous statute, the resolution of which
falls under the authority of the United States Supreme Court.
Unfortunately, the Court does not resolve the issue of the
ambiguity in 3 U.S.C § 5, but merely states that the
Florida Legislature meant to fulfill what it requires, and
there is not time for the recounts to proceed properly within
the time allowed. If the Court would have seized this opportunity
to resolve the controversy over times and deadlines, we could
have found out if the resolution was based on the text. As
it stands, it appears that when Scalia agreed with the Court
in deciding that the deadline is final when the text does
not say the deadline is final, he diverges from what the law
says and takes instead what the law ought to say if the law
is to avoid controversy and chaos. Therefore, with regard
to the issue of whether new recounts could have been conducted
after December 12th, Scalia seems inconsistent.
In conclusion, there is much more analysis of the Supreme
Court's decision in Bush v. Gore than can be done in
one essay. What has emerged is that Scalia is not inconsistent
with his reasonable constructionism with regard to the Fourteenth
Amendment guarantee of equal protection. Even if there are
competing contrary textualist interpretations, such controversies
fall easily within Scalia's general theory. However, why the
safe harbor provision is considered a final deadline for the
choosing of electors is not clear in the text of 3 U.S.C.
§ 5. The Florida Legislature made reference to this section
of the code in order to assure the voters of the state full
representation, but the meaning of the code was not clearly
established by the court. What 3 U.S.C § 5 says in the
present context is that since the resolution of the contest
is not complete, the chosen slate of electors either is or
is not conclusive. Without a meaningful resolution of the
meaning of the text, Scalia cannot be said to have based his
agreement with the majority on a reasonable interpretation
of the meaning of the words in the text.
The Supreme Court may have taken a decision that prevented
the chaos and uncertainty of the election from continuing.
They were probably right in considering the recounts ordered
by the Florida Supreme Court to be in violation of the Fourteenth
Amendment, but the Supreme Court cannot have based its opinion
that the deadline in 3 U.S.C. § 5 is final on a reasonable
construction of the original meaning of the words in the text.
Again, Scalia's agreement with the part of the decision that
concluded not only that the recounts should stop, but that
no further recounts could be conducted is not consistent with
his legal theory from A Matter of Interpretation.
July 2001
From guest contributor Bobby Kreiner
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