The right and left wings of the Republican and Democratic Parties do not appear to have symmetrical tactics. The right, usually in the House but often in the Senate, refuses to compromise even when that refusal will generate a worse short-term result from their perspective. For instance, the right in the House has refused to vote for federal spending bills even if they were written by the Republican leadership. In 2012, the most conservative caucus refused to vote for a bill that would have limited tax hikes to those earning over a million dollars a year. And they have blocked some of the compromises that might smooth the passage of a partial Obamacare repeal and health care reform.
As a result, the Republican leadership has had to rely on Democratic votes for the budget, leading to higher spending. Without the leverage of the House bill taxes went up on couples earning over $450,000. The prospects for any substantial legislative reform of health appear dim.
In contrast, the Democratic left is willing to compromise. They all voted for Obamacare, even if it was not a single-payer plan. And I do not recall any substantial opposition to budgets passed in the Democratic Congress. What explains this difference?
At the Federalist Society national student symposium, my colleague Josh Kleinfeld was the deserving recipient of the Paul Bator Award given to an outstanding law professor under 40. His beautiful acceptance speech focused on the importance of Burkean conservativism. And Kleinfeld is correct: the right owes an enduring debt to Burke’s skepticism of ordering society according to the abstractions of the kind advocated by the French philosophes. That debt is all the greater, now that these types of philosophes have gone global.
But I do wonder whether one aspect of Burkean conservatism—deference to past historical experience—deserves quite as much weight today as it once did. Burke had both religious and more instrumental reasons for valuing that experience. For Burke, history was “the known march of the ordinary providence of God.” More secularly, it was also the best repository of human prudence and wisdom and thus the best guide to policy in an uncertain world.
But the value of historical experience as a guide for policy depends on the technological and social rate of change and on the availability of alternative methods of sifting experience.
I was pleasantly surprised to see this new podcast with Patrick Allitt. I know Professor Allitt’s work from his lectures for the Great Courses (previously known as the Teaching Company). I have listened to three of his courses, all of which I greatly recommend. The first course I listened to by Professor Allitt was his Victorian Britain. Both my wife and I loved this course, and we still laugh at Allitt’s impersonation of Queen Victoria. Great fun and highly recommended. The second course I enjoyed was History of the United States (2nd edition). Allitt is joined here by two other excellent lecturers…
There are a couple of questions that I have often been asked but to which I still have found no satisfactory answer. The first relates to history: What use is it?
[I]t’s impossible for jurists, law professors, and Supreme Court justices — or judges anywhere — to really use history. It simply would not work. Judges have to invent another kind of history: we call it “law office history,” or “history lite.” It’s a necessary fiction, and I don’t consider that to be a bad thing. It’s a necessary fiction for judges and other jurists to get along with their work—they need some kind of history to work with. History is much too complicated to be used effectively by judges and the courts.
Will writes that “Gordon Wood’s remarks, while mixed, were much more accommodating than [Will] expected.” I agree with Will, that Wood was more accommodating than I expected, but still I have real problems with Wood’s remarks.
Most importantly, I can’t tell exactly what Wood is saying. One possibility is that he is saying that originalists (and law professors generally) use history to buttress their cases and therefore they can’t really be true to the history. But that’s ok, because the two enterprises differ. Historians are after truth, but law professors seek to persuade for political and legal purposes. For example, Wood criticizes Scott Gerber’s view that the Framers were committed to the separation of church and state, noting that there were many established churches and other interactions between church and state at the time of the Framing. But then Wood seems to excuse Gerber on the ground that law professors have different purposes.
Well, if that is what Wood means, I completely disagree. Good originalism should follow the actual history and the claim that the Framers were commited fully to the separation of church and state is simply bad history. Originalists are supposed to make accurate claims and I don’t want Wood making excuses for originalists on the ground, well, these lawyers have different purposes. Thanks, but no thanks.
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.