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.