Mike Rappaport responds to Judge Posner’s critique of Scalia and Garner:
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.
This is a common refrain from Judge Posner, to which I would reply that frequently judges are called to perform tasks outside their core areas of expertise.
Judges are not economists (Judge Posner excepted), yet they have to decide complicated antitrust cases.
Judges are not engineers, yet they have to decide patent cases. Justice Scalia has made this point in an interview.
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.
Judges, and lawyers generally, must become experts on many areas outside the law, and determine how the law applies to those issues. As I I have noted before:
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.
I don’t know that history is that much conceptually different from these other areas, though because it involves complicated and controversial constitutional decisions, originalism attracts much more criticisms.
The topic of lawyers, and judges, as subject-matter experts, is one I wish to pursue further–primarily in the context of originalism, but also in other areas.