It may just be my historical perception, but I feel “legal originalism” is getting much worse as scholars cut corners and proclaim their findings as “originalist.” One cannot deny that “originalism” in legal thought is here to stay, and unless the Supreme Court clarifies what it requires of “originalism” scholarship (probably never going to happen), it will continue to run rampant with claims of what constitutes “public understanding,” “original meaning,” “original intent.”
To fix this problem, Charles proposes 6 ground rules for originalism. Take a look. These suggestions seem quite helpful, I’ll need to digest this a bit more.
I have no doubt that the methodology and approaches originalist scholars and judges use conflict with generally accepted historian practices. I’m also fairly certain that the approach Judges use to deal with Intellectual Property differs from the approaches of engineers and scientists (think of a Daubert hearing). The approach Judges use to deal with economics and antitrust law differs from the approaches economists take. The approach Judges use to deal with issues of faith differs from the approach members of the clergy and philosophers take, and…. (I can go on…).
Judges aren’t historians. Judges aren’t engineers. Judges aren’t philosophers. Judges judge.
To the extent that Judicial methodologies, like originalism, can be improved by adopting the techniques of the experts in the field, as Charles suggests that is probably a good thing. But to assert that because Judges do not adopt the procedures of a field renders the findings of the court (or scholars) invalid would likely invalidate a wealth of jurisprudence. Originalism, as hot as it is, represents such a tiny part of our legal system. Most cases are decided irrespective of original meaning. While critiques on originalism in this sense are fair, I think the critique cuts much more deeply to the core of what judges–who are not experts in various areas–actually do.
I need to digest this a little more.