About medicine, as understood in the late 1700s: at the time of World War I (1914-1918), the Germ Theory of Disease was still controversial among American doctors. It was not generally accepted by most doctors til the 1930s. So, we are supposed to think like 18th century scientists and doctors now?
Yes, and why did “they” not teach us this by fifth grade? Despite a better-than-average knowledge of science and the history of science, I never saw that in print until a few years ago, at about age 60?
A voice of sanity crying in the wilderness. I will be passing this article along to several colleagues who will understand it implicitly and immediately, and referring persons commenting here whenever it is appropriate.
It is even worse that Singer says. It is hard enough to determine the “original public understanding” of any constitutional provision, when all indications are that people in the 18th and 19th centuries had the same types of debates that we have today; 18th century citizens would have disagreed about the application of constitutional provisions, just like we do today. (And, by the way, the same justices who purport to know the public understanding of an 18th century constitutional provision throw up their hands and say that it is impossible to know what a law passed by the present congress is intended to mean.) The worst part is that the “public understanding” is often determined by looking at the statutes on the books in the 18th century. E.g., abortion bans in the 18th century are evidence that the 18th century public couldn’t have possibly understood that the constitution had anything to do with the right to get an abortion. Here’s the problem: very few people could vote or serve in legislatures in the 18th century. Women, African-Americans, and poor people had no participation in making the laws. Not until the voting rights act in the 1960s did we have anything like the democracy that we have today, and that democracy is still far from perfect. So this whole “originalism” thing is a mechanism to limit our liberties to those that rich white men would have deigned to afford us in the 18th and 19th centuries. The emperor truly has no clothes. It is amazing that anyone takes originalism seriously.
Steven Singer adroitly names the weaknesses in Originalist thinking. What we do not know is whether this in Judge Barrett’s mind has transformed from principal to dogma. Undoubtedly, we will learn that in her first written opinion.
We will also learn whether she intends to outdo Scalia in using Originalism as a cudgel to obliterate individual rights within a corporate-dominated America. Singer is absolutely correct in arguing that Originalism would, in and of itself, require mastery of historic linguistics, not to mention its semantics. If the lady never took time to take in a fragment of climate science when did she master linguistic science?
These christian fundamentalists have been slowing our evolutionary path for millennia.
Excellent article, Mr. Singer. The absurdity of Amy Barrett! Great headline. If Amy was a honest judge, she would have said this: " THANK YOU MR. PRESIDENT FOR NOMINATING ME FOR SCOTUS, BUT UNFORTUNATELY, I CANNOT ACCEPT THE NOMINATION OF ONE WHO WAS IMPEACHED BY THE HOUSE AND IS FROM MY PERSPECTIVE, UNFIT FOR OFFICE AND IS THEREFOR…UNFIT TO NOMINATE ME OR ANYONE ELSE FOR SCOTUS".