January 26, 2004

My first year Constitutional Law class will be dealing with Bush v. Gore today, specifically the Article II question the Rehnquist concurring opinion relied on. This raises complicated questions about state court and U.S. Supreme Court lawsaying authority.

(I'm still working on my project of coining the word "lawsaying." It's like "soothsaying," and it's based on the famous Marbury quotation, "It is emphatically the province and duty of the judicial department to say what the law is." I've got a couple law review citations giving me credit for coining the term, but the word only gets 16 hits in the LEXIS Law Reviews file, and 5 of them are from me. So, please, go ahead, use the word.)

Bush v. Gore is important, but I find it hard to believe that people are willing to invest the time to understand the federal and state statutes and the federal and state constitutional law provisions needed to grasp the legal issues in the case. Even if they do spend the time, I think their intake of information is affected at every step by their preexisting mindset about what the Supreme Court did (e.g., stole the election, saved us from an overreaching state court). But most likely, they won't spend the time, because they know very well what happened. Where did that knowledge come from?

I remember the night the decision came down, watching reporters on TV trying to read and understand the opinion in front of live cameras. That seemed at the time to be antithetical to a real process of understanding a piece of writing, but in retrospect I think nearly everyone reached their understanding at that point. Perhaps that is what human understanding is, and the rest is filling in the details.

It is hopeless and crucial and absurd to teach Bush v. Gore.

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