Natural law may be the ultimate source of some constitutional norms, but the positive law of the Constitution has a life and integrity of its own.
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 (link no longer available). 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.