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 complicating disciplines outside the law. A perfect example is the recent gene-patent case, Association for Molecular Pathology v. Myriad Genetics, Inc.

The Justices were quite frank in stating that they had no clue how to understand the underlying scientific doctrine. For example, Justice Alito said:

To get back to your baseball bat example, which at least I — I can understand better than perhaps some of this biochemistry.

Yet, somehow, the Justices will be called on to resolve this complicated issue that involves cutting edge scientific doctrine. The Chief’s analogy to the baseball bat forming naturally out of a piece of drift-wood was a reasonable effort to grasp a complicated topic.

Now, you may say that originalist inquiries affect important issues of constitutional law, such as the Second Amendment, while this case involves something important, but not earth-shattering–whether certain types of DNA can be patented.

But my 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.

Update: Paul Horwitz wrote a really, really thoughtful post here. It gave me a lot of food for thought, which I will chew on for a while.