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If they could be strictly Originalist though, I could almost forgive them. I don’t see a real Originalist argument for Presidential Immunity, as just one example.
This is the main issue with so-called originalists. If they dispassionately followed their own philosophy it would be one thing. The law is the law, as written and as intended by its authors. There is a certain undeniable logic to this approach, and I think even if you reject it, it is fundamentally a philosophy that one could respect.
But orientalists never did this. They have constantly engaged in at least as much “legislating from the bench” as other jurists. It is a rare day when we saw a decision where originalism overcame their right-wing ideology.
In practice, originalism is just a rhetorical weapon, and not a serious idea.
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Can’t reason someone out of something they didn’t reason themselves into
Judging is, in fact, far more like carpentry than like science. Indeed, a judge interpreting a constitution in its third century is like a carpenter called in to renovate some part of an early Federal-era house. I have hired skilled craftspeople to do renovations on my house; I did not ask them to imagine their perfect house and then to tear down the parts of mine that don’t conform to that imagination. Scientists needed counter-theories to replace the idea of phlogiston or of the heliocentric universe; carpenters don’t need a theory of building. They need skill, care, well-maintained tools, and immemorial techniques to build on the level and the square.
Interesting analogy.
As both a scientist, and a carpenter, it’s a bunch of crap.
Most of the time**, judging involves determining the truth, and the critical analysis of the facts of a case.
The scientific method, at its core, is also a truth-seeking exercise, centered on the idea of failing to prove a theory wrong (“fail to reject the null hypothesis”). In lay terms, a successful scientists will proactively trial an idea against one or more opposing ideas. In doing so, a scientist takes the position of competing truths and systematically disproves them, because disproving bad ideas is easy. In a court of law, the same occurs when a piece of evidence is presented to counter an accusation or defense (like an alibi). Therefore, in both science, and in law, verdicts are achieved on the basis of “reasonable doubt”. Perfect proofs do not exist (yes, even in math, because of axioms).
**To be fair, there are different types of courts, with different functions. A supreme court will probably spend no time on examining evidence for example, where as traffic court will spend most of its time on evidence.
imagine their perfect house
No part of “imagining perfection” is found in the scientific method. This is some fictional view of how science actually works. If anything, it’s carpentry that involves “imagining perfection”, where a building plan is “perfection” and “imagining” is the boundary between the plan and the reality of trying to build to specification.
Some fair points.
I think you’re missing the broader context of the analogy as it pertains to current arguments around constitutional law though, that was just one of the last paragraphs of the piece and the broader context is quite important.
I would also push back on this:
No part of “imagining perfection” is found in the scientific method.
To the contrary, when devising experiments and hypotheses, we very much do try to imagine perfect ways to describe and test our world, ones that will work with full consistency and accuracy. It may not be regularly thought of as a realistically attainable goal in the near term, but it’s certainly a feature, an idealized goal. I would argue this fundamentally differentiates it from any of the building trades.
Haven’t read the article yet, but that’s a banger of a headline. Looking forward to reading some legit journalism
It’s ridiculous from the start.
So you want to know how Jefferson would think about gig workers spoofing the GPS on their jailbroken phone to game their virtual employer’s algorithmic payment model?
You’re gonna need to find enough relevant text about his philosophy that you can confidently assert what he’d think if he stepped out of a time machine (and had 5-10 years to catch up), or you need to map every little aspect of the modern world back to a colonial era concept that’s specific enough to be an accurate translation, which just seems like too massive of a construct to remain useful.
It’s a doomed task. And for what? How is it even useful?
By the way: You Are Not So Smart has a great interview with the author of “The Year of Living Constitutionally: One Man’s Humble Quest to Follow the Constitution’s Original Meaning”, if you prefer to listen to discussion of the absurdity of Originalism.
Places center and forward something that has always been troubling about SCOTUS decisions.
The one part missing is how the threat of ‘activist judges ruling from the bench’ is always trotted out against liberal judges during confirmation hearings, but when conservative SCOTUS just makes up its own rules and privileges and completely ignores precedent, nobody should question them.
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