Dreaded deadline doom on a few projects (and some actual paying work) means that, unfortunately, today’s post will have to be light on original content.
Fortunately, Judge Posner has an excellent review of Justice Scalia’s new book up at The New Republic, so I can just direct you there. It’s classic Posner, and includes one of the most lucid critiques I’ve read on originalism:
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.
Not strictly class-action strategy, but still well worth your time.