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View Diary: On Constitutional Interpretation: Originalism v. A Living Constitution? (286 comments)

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  •  I stand happily corrected. (none)
    In my second year of law school I researched this decision after reading it in my Con Law course.  This decision and the issues involved is so amazingly complex I think there can be no right answer.  Justice Ginsberg's dissent, as you quoted, isn't really much of a legal argument.  The jist of what she is saying is that this decision is exceedingly rare.  But then again, so were the events of that election.  Simply because the Court has rarely ventured into some jurisprudential territory does not mean that the resulting opinion is wrong, just rare.  The argument presented in Bush v. Gore was patently bad, but not per se "illegal" or rather, without Constitutional footing.

    "The sharpest criticism often goes hand in hand with the deepest idealism and love of country." -RFK

    by apmiller on Sat Jul 23, 2005 at 06:28:24 PM PDT

    [ Parent ]

    •  Then Please Point Me To Some Supporting Argument (none)
      I'm a writer, not a lawyer, and I stopped following it after 9/11. But up to that point I had reviewed a number of books about Bush v. Gore for Publishers Weekly and other venues. I could find no one in all that I read (including footnotes) who actually defended the decision--that is, the legal reasoning--as opposed to the outcome (the result).  And this includes Posner. (I did not review his book, but I did review several collections, two of which contained essays by him, at least one of which explicitly rejected the decision and supported the outcome.  (I don't recall if both of them did, but they were closely related in outlook and intent.)

      If no leading Constitutional scholar could put the decision on a firm legal footing in the first 10 months following the decision, I'd say there is no such footing. And certainly there was none in the Supreme Court chambers when the decision was written.

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