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Wednesday, April 17, 2013

Blackman on "History" and Biochemistry

In an enjoyable and well-written post, Josh Blackman asks whether originalist questions present anything more difficult or different from other complex questions the courts are called on to resolve. He writes:

A common attack on originalism is that judges are not trained historians, and lack the skills to understand the nuance and context of history. I have never found this argument particularly compelling, because judges are frequently called on to understand complicated disciplines outside the law. . . .[M]y point goes more to methodology than substance. Judges are called on to understand difficult concepts. Relying on briefs by attorneys who specialize in these areas, judges, by their best lights, come to an answer. . . . History seems to be even closer to the area judges train in than biochemistry. Considering the competing briefs of historians allows for an adversarial review of the original public meaning of certain concepts.

With respect, I think this is not yet a sufficient response. For one thing, judges could of course do both badly. The fact that judges are (or consider themselves) called on to decide complicated issues in other fields doesn't mean they do it well, so it doesn't tell us whether it's a problem with respect to history; it just tells us it's not a unique problem.

For another, in many such areas there is a substantial administrative agency structure in place to allow first-order evaluation of these questions by experts with significant experience in the field. Much of the question for judges then becomes what level of deference to apply and when. That's less true of history; there's no Federal History Agency taking a first stab at these questions. Yet again, the questions that arise with respect to biochemistry may have readily falsifiable answers that help to weed out clearly wrong opinions; the questions that arise in history may not. 

Blackman is right that it's ultimately a question of methodology, certainly. But that also suggests a difference. Courts, or courts in concert with the administrative state, may seek ways to avoid having to decide difficult technical questions outside their expertise. But originalism, of whatever variety, is an approach to constitutional law that actively forces judges into a field in which they arguably lack expertise. It increases rather than decreases the epistemological problem. If you were looking for a judicial methodology of constitutional interpretation that avoided putting judges in a position for which they're ill-suited, presumably you would focus on what judges do well and often--crunching doctrine--rather than on an approach that requires them to do history. Originalists argue that they are required to do some form of history because that is what legitimate constitutional interpretation requires. Presumably, then, they would argue that whether they can do it well or not, it's what they're called upon to do just the same, and Article V will serve as a safety valve. Fair enough, if you accept the premise (I don't). But it's still an odd ex ante choice of method if what you care about is comparative institutional expertise. 

A slightly different but related answer, and I think an accurate one, is to say that originalist judges aren't "doing history" in any sense in which actual historians would describe their own field. They're doing a legal activity that consists of deriving present meaning from text based on the original public understanding of language. They're doing so in a way that is constrained in various respects in terms of sources, goals, selection effects (the fact that judges are trying to answer a specific question about a contemporary legal issue, and so will be affected by presentist concerns, rather than at least taking on a broad question with less of an interested starting-point), and so on. The results of that method may be judged in various ways; of these, historical accuracy is one but hardly the only measure. Historians, and historians' briefs, may aid them in this endeavor, but not much and rarely definitively. (And do judges really listen to historians anyway?) What they do may be closer to etymology than history. I doubt they have much expertise here either. But it's at least valuable to have a more precise understanding of what they're doing, rather than use "history" as a catchall label or judge their efforts by the standards of a related but different field altogether. 

The ultimate question is whether originalism is required of judges engaged in constitutional interpretation or not; I can't answer that question here. But if it is, it won't matter much whether they're good or bad at it, or whether they're any better or worse at that than at deciding cases involving biochemistry. Still, we recognize in all kinds of ways that judges are lousy at biochemistry and seek ways of avoiding the necessity of doing so, or of limiting their work in this area to questions and methods they're capable of dealing with. Originalism does the opposite: it requires judges to dive headlong into an area of inquiry--but don't call it "history!"--at which they're arguably not especially able. I doubt the comparison between history and biochemistry is entirely apt, for the reasons I've given; but if it is, I don't see why it should comfort us any. 

 

Posted by Paul Horwitz on April 17, 2013 at 10:49 AM in Paul Horwitz | Permalink

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Comments

Nicely said and, I think, quite right.

Posted by: Joseph Slater | Apr 17, 2013 11:41:23 AM

Very well said Paul. Let me chew on this for a bit.

Posted by: Josh Blackman | Apr 17, 2013 12:12:00 PM

"Originalism ... requires judges to dive headlong into an area of inquiry ... at which they're arguably not especially able." That doesn't seem right to me. Seems to me that if the meaning expressed at the time of the Founding is the actual Constitution, and if judges aren't competent to assess parts of that Constitution with sufficient confidence--something, of course, that we can't tell until they make an effort in particular cases--they should simply refrain from making assertions about the Constitution that contradict those of the elected branches. See http://ssrn.com/abstract=2232453.

Posted by: Chris Green | Apr 17, 2013 12:29:01 PM

Consider the alternatives! If not originalism, then what? If it's a theory that requires judges to, say, evaluate complex social policies or moral philosophy, then isn't the question whether they are any better at those activities? (From an institutional perspective, is there any reason to believe they are any better at those than a legislature is?)

Posted by: Thomas | Apr 17, 2013 2:13:01 PM

Perhaps this is just another symptom of the organized bar's active and overt hostility to lawyers who had a Life Before Law School, particularly a rigorous academic or professional life. There's a myth in the law that with a legal education, one can learn just about anything well enough to make critical decisions about it; if you want refutation, just read the transcript of the Myriad oral argument earlier this week (PDF).* The less said about some of the problematic pseudoeconomic analysis that has become legal doctrine (e.g., the HHI), the better. I refuse to wade into the morass of what should be a multivolume work: Historiographical Missteps in the Supreme Court's Decisions in Heller (and there are plenty to go around).

* It would be somewhat generous to say that some of the lawyers in the room betrayed some shadowy understandings of both the science and the laboratory methods at issue. It would be an outrageous overstatement to claim that any substantial, let alone nuanced, understanding of scientific method -- or of research motivation and methodology -- made its way into the oral argument. That transcript made my inner biochemist-in-my-misspent-youth want to throw it against a wall; if bad facts make bad law, so does bad understanding of what constitutes a "fact" in a specific legal context.

Posted by: C.E. Petit | Apr 17, 2013 2:27:20 PM

I think your second point is spot on. The problem is not just that judges lack training in history as a discipline. Rather, the nature of historical inquiry is such that the results can never provide the sort of concrete, definitive answers needed to decide discrete cases. And calling a result grounded in historical truth obscures the reality that something else - something unspoken and likely resembling judicial activism by another name - fills in the gaps.

Posted by: Eric Porterfield | Apr 17, 2013 5:31:10 PM

I too think the second point in the post is powerful. Biochemistry, after all, usually endeavors to investigate claims that are falsifiable. In that sense, the reliability of scientific claims can generally be tested. Daubert insists on establishing the reliability of a particular scientific method in this fashion before it may be used as evidence.

History is much different. Even assuming that historical"truth" can be reliably ascertained given what is often conflicting, confusing, and incomplete evidence, historians frequently caution against trying to identify some asserted historical truth and applying it to contemporary controversies. The problem is only worse when it comes to originalism. Given that so much of the Constitution is written at a high level of generality, there is nothing like a reliable and generally accepted method for applying "original meaning" to contemporary controversies -- and certainly no method that can be tested in the fashion demanded by science. Consider a quasi-scientific example: Does the "original meaning" of the Fourth Amendment forbid the warrantless use of a thermal imaging device, to identify sources of heat within a home, even when the imager is in a public location and involves no physical trespass of the type that would have been forbidden in the framing era? The original meaning of the Fourth Amendment, of course, was constructed in a world in which this very question would have been regarded as absurd -- after all, Thomas Jefferson might have explained, only witches use thermal imagers. Even most originalists agree that the original meaning of constitutional text is often vague or ambiguous, requiring something other than originalism to resolve most contemporary constitutional controversies. I could go on, but all this is addressed here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1744423 Among other things, I endeavor to demonstrate that Justice Scalia's effort to answer the question about thermal imaging, whatever its merits, is based on a normative claim, and not the original meaning of the Fourth Amendment. Indeed, that is usually the way things go when originalists try to apply original meaning outside the context in which that original meaning was constructed.

Thanks for the post!

Larry Rosenthal
Chapman University School of Law

Posted by: Larry Rosenthal | Apr 17, 2013 7:57:05 PM

Biochemistry usually endeavors to investigate claims that are falsifiable. Indeed, the reliability of scientific claims can accordingly be tested; Daubert insists on establishing reliability along these lines before scientific evidence may be used. History is much different. Even assuming that historical"truth" can be reliably ascertained given what is often conflicting, confusing, and incomplete evidence, given that so much of the Constitution is written at a high level of generality, there is nothing like a reliable and generally accepted method for applying evidence of "original meaning" to contemporary controversies. To use a quasi-scientific exmaple: Does the "original meaning" of the Fourth Amendment forbid the warrantless use of a thermal imaging device, located outside the home in a public place and involving no physical trespass of the type that would have been regarded as unlawful in the framing era, to identify sources of heat within a home? Original meaning, of course, was constructed in a world in which this question would have been regarded as absurd. Perhaps more important, there is nothing like a generally accepted methodology, capable of making claims that can be tested and falsified if wanting, for applying original meaning to contemporary controversies. Even most originalists agree that the original meaning of constitutional text is often vague or ambiguous, requiring something other than original meaning to resolve most contemporary constitutional controversies. I could go on, but I address this problem at greater length here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1744423

Thanks for the post!

Larry Rosenthal
Chapman University School of Law

Posted by: Larry Rosenthal | Apr 17, 2013 8:29:47 PM

Biochemistry usually endeavors to investigate claims that are falsifiable. The reliability of scientific claims can accordingly be tested; Daubert insists on establishing reliability along these lines before scientific evidence may be used. History is different. Even assuming that historical"truth" can be reliably ascertained in light of what is often conflicting, confusing, and incomplete evidence, given that so much of the Constitution is written at a high level of generality, there is nothing like a reliable and generally accepted method for applying evidence of "original meaning" to contemporary controversies. To use a quasi-scientific example: Does the "original meaning" of the Fourth Amendment forbid the warrantless use of a thermal imaging device, located outside the home in a public place and involving no physical trespass of the type that would have been regarded as unlawful in the framing era, to identify sources of heat within a home? Original meaning, of course, was constructed in a world in which this question would have been regarded as absurd. Perhaps more important, there is nothing like a generally accepted methodology, capable of making claims that can be tested and falsified if wanting, for applying original meaning to contemporary controversies. Even most originalists agree that the original meaning of constitutional text is often vague or ambiguous, requiring something other than original meaning to resolve most contemporary constitutional controversies. I address this problem at greater length here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1744423

Larry Rosenthal
Chapman University School of Law

Posted by: Larry Rosenthal | Apr 17, 2013 10:46:20 PM

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