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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:



If P then Q













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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