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