While Judge Posner’s review of the Scalia/Garner book has received a great deal of attention, my posts have focused on issues different than other posts have (link no longer available). So I plan to continue this series for a little while longer.
Posner next criticizes originalism based on the problems that arise from relying on history:
The decisive objection to the quest for original meaning, even when the quest is conducted in good faith, is that judicial historiography rarely dispels ambiguity. Judges are not competent historians. Even real historiography is frequently indeterminate, as real historians acknowledge. To put to a judge a question that he cannot answer is to evoke “motivated thinking,” the form of cognitive delusion that consists of credulously accepting the evidence that supports a preconception and of peremptorily rejecting the evidence that contradicts it.
Judge Posner would have judges decide cases based in part on their own policy views. As Posner’s essay reveals, judges often feel strongly about such matters, and if allowed to take them into account will certainly do so.
Posner thinks that originalist judges will read their policy views into the history. That is certainly a risk. But when judges engage in “motivated” history, they can be criticized and sometimes it will be clear that they got the history wrong. Moreover, even if judges are motivated by policy, it is not clear why that is worse than having judges consider policy directly. In addition, I am confident that having judges consider history will lead them to consider policy less often than judges who are instructed to consider it as part of the adjudicative process.