While Judge Posner’s review of the Scalia/Garner book has received a
great deal of attention, my posts have focused on issues different than
other posts have. So I plan to continue this series for a little while longer.
Posner next criticizes originalism based on the problems that arise from relying on history:
The
decisive objection to the quest for original meaning, even when the
quest is conducted in good faith, is that judicial historiography rarely
dispels ambiguity. Judges are not competent historians. Even real
historiography is frequently indeterminate, as real historians
acknowledge. To put to a judge a question that he cannot answer is to
evoke “motivated thinking,” the form of cognitive delusion that consists
of credulously accepting the evidence that supports a preconception and
of peremptorily rejecting the evidence that contradicts it.
Judge
Posner would have judges decide cases based in part on their own policy
views. As Posner’s essay reveals, judges often feel strongly about
such matters, and if allowed to take them into account will certainly do
so.
Posner thinks that originalist judges will read their policy
views into the history. That is certainly a risk. But when judges
engage in “motivated” history, they can be criticized and sometimes it
will be clear that they got the history wrong. Moreover, even if judges
are motivated by policy, it is not clear why that is worse than having
judges consider policy directly. In addition, I am confident that
having judges consider history will lead them to consider policy less
often than judges who are instructed to consider it as part of the
adjudicative process.
While
Posner emphasizes the ambiguity of history, it is clear that sometimes
history does reveal clear answers. While judges may not have the
historical knowledge, the briefs can supply historical information, and
the opposing sides can point out errors or weaknesses. And even in cases
where the history is less than perfectly clear, originalism can require
judges to reach the decision based on the weight of the evidence. In
other words, it can establish a norm that requires judges to make their
best judgment as which interpretation is better supported by the
evidence. Such a norm can help to constrain motivated reasoning.
I
should note that, contrary to Posner’s suggestion, historians are not
necessarily better at understanding the history relevant to the original
meaning. Historians are not normally trained as lawyers and they often
look at the history from a nonlegal perspective. That often leads them
astray when attempting to understand the original meaning. By
contrast, judges have a legal perspective and can bring that approach
to analyzing the history.
None of this is to deny that judges
often make mistakes when evaluating and presenting originalist
arguments. There is a skill to analyzing originalist arguments and it
needs to be learned. The problem is that originalism has been largely
ignored for many generations and so many judges do not have much
experience with such analysis. But that does not mean judges are
incapable of performing the task. It just means that judges need to be
better schooled in it. And Scalia and Garner’s book is part of an
effort to do exactly that.
Posted at 7:32 AM