Justice Scalia thinks so.
SCALIA: Right. I mean, that is false. Some people say, you know, ”What are you Scalia, a historian? You’re going to figure out what this man in 1791, when the Bill of Rights was ratified – ” Yes. I can do that, just as I can decide patent cases.
What do I know about patents? I know nothing. But I listen to each side. They bring – that’s what the adversarial system is all about; each side has an interest in bringing forth the best evidence possible. So, just as I can decide a patent case by evaluating – in fact, it’s even easier for me to evaluate historical evidence than it is for patent evidence for Pete’s sake.
Judges do this all the time. It’s the council who have to be expert, or who have to know where to point the judge’s for expert advice. And I don’t see why judges cannot do history. They have to do history all the time.
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.
Judges are frequently forced to reach outside the area of law to understand complicated topics. Indeed, if one accepts conceptually the doctrine of originalism (and most judges would, at least to some small degree), then understanding what certain things meant 200 years ago–a historical inquiry–is a necessity (what to do with that history is a whole different ball of wax).
That being said, even within the best lights of judges, there is good history and better history. Judges should strive to do better history, within the adversarial system.