By Professor Bruce Ackerman, Bruce Ackerman
The excellent Court's intervention within the 2000 election will form American legislations and democracy lengthy after George W. Bush has left the White apartment. This very important ebook brings jointly a huge variety of preeminent felony students who deal with the bigger questions raised through the ideally suited Court's activities. Did the Court's determination violate the guideline of legislations? Did it inaugurate an period of super-politicized jurisprudence? How should still Bush v. Gore switch the phrases of discussion over the subsequent around of ideal court docket appointments? The contributors-Bruce Ackerman, Jack Balkin, Guido Calabresi, Steven Calabresi, Owen Fiss, Charles Fried, Robert submit, Margaret Jane Radin, Jeffrey Rosen, Jed Rubenfeld, Cass Sunstein, Laurence Tribe, and Mark Tushnet-represent a extensive political spectrum. Their reactions to the case are assorted and extraordinary, full of gleaming argument and lively debate. this can be a must-read e-book for considerate americans all over.
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Additional info for Bush v. Gore: The Question of Legitimacy
Sample text
Bush v. Gore is a di√erent kind of case. No one cared in any large, prospective sense about whether Florida had or hadn’t set a December 12 deadline for its election contest. All that turned on that question was—the presidency of the United States. Thus when the majority made up this deadline on completely indefensible grounds, one does not go looking for post hoc rationalizations to explain why Florida really had made December 12 its deadline, even if the Court didn’t itself give very good reasons.
There is an obvious difference between the regime the Court struck down and the rational universe of diverse and divergent election procedures. True it is that the methods of tabulation in our country vary from state to state and even from precinct to precinct. ∞≠ The Florida court by contrast set in motion a system of disparities after the election had been held, when it was known just what depended on every subjective judgment, every change of standard from one moment to the next in counting the ballots.
Gore argue that all the problems in the majority opinion can be avoided, and the Court’s decision placed on much firmer grounds, by adopting the reasoning o√ered in the concurrence. Post hoc rationalization is standard operating procedure in legal thought. Sometimes the reasoning in a concurrence is belatedly recognized as superior to that in the majority opinion. But in Bush v. Gore, there was a good reason why the concurring opinion did not command a majority. In the majority opinion, at least the substantive constitutional holding—the finding of an equal protection violation— was within the ambit of legal defensibility.