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

Noah Feldman has been a man I admire as an objective arbiter in constitutional law for a long time. Recently, however, his writings have been littered with elemental mistakes and salacious speculations. Feldman’s latest column continued the pattern. I was left scratching my heads.

The title of the article is “Scalia’s Ghost Is Haunting Conservative Justices.” Subhead: “The Supreme Court giant of the late era united his philosophical descendants behind theories on originalism and textualism.” These ideas have become a conflicting source. This article argues that textualism is in tension with originalism. The Court’s conservatives seem to be dividing because of that tension.

In some ways, textualism could be considered anti-originalism. This is the belief that you should not ask the legislator what they meant or the purpose of a law to be understood. Look at what it says. The textualists will often insist that they don’t follow the literal meanings of the law. It is embarrassing to admit that textualists don’t know how to escape following words literalistically. This is because they cannot rely on the intent or purpose of their sentences to determine what is absurd and what isn’t.

Since a long time I have been researching originalism as well as textualism. Feldman’s words are a mystery to me.

This column is about the doctrine of an independent state legislature. He also posits the following: Moore v. Harper, Justices Thomas, Alito, and Gorsuch departed from Justice Scalia’s jurisprudence.

The Supreme Court’s conservative justices declared this month the Constitution must be read in order to allow state legislatures to have complete control over election procedures. Another said that it was important enough for all court members to discuss the subject. It’s alarming because this could lead to state courts being unable to stop partisan cheating.

The most significant thing about this issue is not the possible (for the moment) danger of a majority court making a decision that would undermine democracy. The conservatives have a new way of thinking to arrive at their desired result.

The legal theory is different from traditional originalism. It differs from conventional constitutional interpretation. This is the concept championed late Justice Antonin Scalia, which holds that the intent of the framers should dictate the meaning of the Constitution.

Feldman gives Justice Barrett a lot of praise for her independence from “radical” peers.

Judge Amy Coney Barrett’s silent silence suggests she could be the truest Scalian: a textualist by statutes and an originalist by constitutional law. It is certain that she reviewed the historical evidence before voting against the case. It is highly probable that she looked at the historical evidence before deciding to vote against the Alito position. An ex-law clerk for Scalia she was not interested in being a textualist on a Constitutional case.

Feldman still tries to manipulate the Court’s moderater 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 was the foundation of the doctrine of an independent state legislature. Rehnquist wrote the following:

In the majority of cases, we are bound by comity and federalism to rely on decisions made in state courts regarding issues related to state law. This practice is a reflection of our belief that decisions made by state courts reflect the sovereign will of the states. Cf. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). In ordinary cases, however, the division of power among branches of the State’s government does not raise any questions about federal constitutional law. However, it is subject to the condition that the government must be republican. U.S. Const., Art. IV, § 4. There are some exceptional situations where the Constitution may impose a duty on or give a power to a specific branch of government in a state. Here’s one example. Article II, § 1, cl. 2 provides the following: Article II, SS 1 cl.[e]Each State may appoint in such Manner that the Legislature of its territory,” voters for president and vice-president. (Emphasis added.) This is why the law of election, not only its interpretation by courts in the States, has an independent meaning.

Feldman wrote an 1,900-word column in which he argued that Scalia would not have accepted the independent state legislature doctrine. But he didn’t mention Scalia having joined the opinion supporting that doctrine. The reasoning behind the Rehnquist opinion was not explained in detail. There are also differences among the Bush v. GoreConcurrence, which was a presidential election, and Moore v. HarperThe election involved the conduct of congressional elections. The fundamental legal question is: What “Legislation” means for the Elections Clause purposes?

The most significant point in this column is to highlight the value of Justice Scalia to constitutional discourse. The majority of Justices are removed from the bench, and their precedents disappear quickly. Randy and myself are currently working to remove cases from our 2nd edition 100 cases book. It is always changing. The only thing that remains is the contribution of Justices to jurisprudence. While decisions about specific controversies may fade, approaches to the law will not.