I’m sorry but I find the underlying premise of this argument—that the content of the law is some kind of objective fact that exists independent of us, like the path of the sun going around the earth—extremely unpersuasive.
Can you explain why you think that we should think about the law this way? I know there are some moral philosophers who think that reasons are objective normative facts and in this way (eg, Tim Scanlon), but this is not a majority view and it seems like a premise one would need to justify.
Even if you grant the premise I think there is still a problem thinking that it is morally self evident that tracking the law as it really is morally justified and needs to further justification. Why is it morally right to accurately state what the law is? In scientific inquiry there are usually shared pragmatic reasons to accurately describe how the world is, not sure why these justifications would apply to the law. Put differently, why are we obligated to tell the truth about the law?
Let's imagine a hypothetical. Suppose originalist sources 100% confirm the Federal Open Market Committee is unconstitutional because the President has to have complete control over any organ that engages in monetary policy, or alternatively because McCulloch v. Maryland is wrongly decided and central banking is not among the federal government's enumerated powers. (Both arguments that some originalists, make, by the way.)
Let's further suppose that if the FOMC were declared unconstitutional, the American economy would be thrown into the biggest Depression in our history, bigger than either the Long Depression or the Great Depression, killing millions of people, immiserating 100 million people, leaving vast segments of the American economy in poverty and leaving us unable to afford our obligations to the world, thereby putting China and Russia and India into a superpower competition as we become irrelevant, and leading to untold numbers of conflicts and wars around the world that kill 300 million people.
Now, you can do that, and say "thank God we got the Constitution 'right', there's no other question than what the law 'is', and the only valid way of determining what the law 'is' is originalism (even though the predecessors whose understanding we are supposedly channeling did not understand this to be the only valid methodology to determine what the law is, but never mind).
Or you can say "you know what, we're wrong-- there are other valid considerations in doing 'law', and one of them is whether your methodology leads to workable results. Obviously any methodology that would require us to destroy the country and imperil the world, especially while operating under the smug, egocentric conceit that 'we're the only ones who are really doing law', is a bad methodology we shouldn't use at least in this instance". And then you save the world.
As you can tell by my parentheticals, while I find the theory just obviously wrong, I find the smugness- the notion that only you guys are doing 'law' and the rest of us who actually care about whether we generate good and workable rules aren't doing law at all-- to be arrogant and infuriating.
Look, there's a reason Holmes is revered despite having some VERY problematic views and actions in his life-- and it's because of this stuff about the life of the law not being logic but experience. I'm not saying go all the way in the other direction either-- text, history, and tradition are all very important ingredients in the soup, and original understanding (and framers' intent, which originalists decry) has its role as well.
But it is absolutely correct that the goal of the legal system isn't to be perfectly logical or to make originalists proud of their smug superiority-- it's to work and generate good results. And if a theory of interpretation yields bad results, it sometimes has to yield and doing that is absolutely saying what the law is.
Stephen—
I’m sorry but I find the underlying premise of this argument—that the content of the law is some kind of objective fact that exists independent of us, like the path of the sun going around the earth—extremely unpersuasive.
Can you explain why you think that we should think about the law this way? I know there are some moral philosophers who think that reasons are objective normative facts and in this way (eg, Tim Scanlon), but this is not a majority view and it seems like a premise one would need to justify.
Even if you grant the premise I think there is still a problem thinking that it is morally self evident that tracking the law as it really is morally justified and needs to further justification. Why is it morally right to accurately state what the law is? In scientific inquiry there are usually shared pragmatic reasons to accurately describe how the world is, not sure why these justifications would apply to the law. Put differently, why are we obligated to tell the truth about the law?
Let's imagine a hypothetical. Suppose originalist sources 100% confirm the Federal Open Market Committee is unconstitutional because the President has to have complete control over any organ that engages in monetary policy, or alternatively because McCulloch v. Maryland is wrongly decided and central banking is not among the federal government's enumerated powers. (Both arguments that some originalists, make, by the way.)
Let's further suppose that if the FOMC were declared unconstitutional, the American economy would be thrown into the biggest Depression in our history, bigger than either the Long Depression or the Great Depression, killing millions of people, immiserating 100 million people, leaving vast segments of the American economy in poverty and leaving us unable to afford our obligations to the world, thereby putting China and Russia and India into a superpower competition as we become irrelevant, and leading to untold numbers of conflicts and wars around the world that kill 300 million people.
Now, you can do that, and say "thank God we got the Constitution 'right', there's no other question than what the law 'is', and the only valid way of determining what the law 'is' is originalism (even though the predecessors whose understanding we are supposedly channeling did not understand this to be the only valid methodology to determine what the law is, but never mind).
Or you can say "you know what, we're wrong-- there are other valid considerations in doing 'law', and one of them is whether your methodology leads to workable results. Obviously any methodology that would require us to destroy the country and imperil the world, especially while operating under the smug, egocentric conceit that 'we're the only ones who are really doing law', is a bad methodology we shouldn't use at least in this instance". And then you save the world.
As you can tell by my parentheticals, while I find the theory just obviously wrong, I find the smugness- the notion that only you guys are doing 'law' and the rest of us who actually care about whether we generate good and workable rules aren't doing law at all-- to be arrogant and infuriating.
Look, there's a reason Holmes is revered despite having some VERY problematic views and actions in his life-- and it's because of this stuff about the life of the law not being logic but experience. I'm not saying go all the way in the other direction either-- text, history, and tradition are all very important ingredients in the soup, and original understanding (and framers' intent, which originalists decry) has its role as well.
But it is absolutely correct that the goal of the legal system isn't to be perfectly logical or to make originalists proud of their smug superiority-- it's to work and generate good results. And if a theory of interpretation yields bad results, it sometimes has to yield and doing that is absolutely saying what the law is.