Read on Twitter
Since I've been summoned to the debates of twitters past (10 days on twitter being several lifetimes),
might as well post a short thing about another Dworkinian response to the oath-breaking argument. https://www.jordanlperkins.com/post/on-the-article-vi-oath https://twitter.com/Originalism1/status/1263486953661612040
might as well post a short thing about another Dworkinian response to the oath-breaking argument. https://www.jordanlperkins.com/post/on-the-article-vi-oath https://twitter.com/Originalism1/status/1263486953661612040
If the anti-originalist point is merely, as I take this paragraph to be saying, that "positivistic" history & sociology aren't enough, you can't interpret law without practicing law---I agree. I'm not a legal positivist.
But then the question becomes WHICH law you're practicing.
But then the question becomes WHICH law you're practicing.
Which is where the THIS of "this Constitution" comes in. It doesn't tell you what a Constitution is, but it tells you you're entering into THE SAME tradition of law as the Framers, which has accepted THIS Constitution is ITS Constitution.
So no, positivistic history & sociology aren't enough, but neither are the words alone plus your private ideas about the just and the unjust. There is, sorry to say, a hermeneutic circle. That's how traditions work.
The circle doesn't tell you what a Constitution is--that requires historical retrieval--but it's enough to get the oath-breaking argument off the ground, since as others have pointed out, attempting that retrieval yields a particular answer about our particular Constitution.
Postscript: Anti-originalists sometimes counter the oath-breaking argument by saying "what, you want to impeach all non-originalist judges???" I don't get it. Does that work as a gotcha against originalist law profs who don't want to rock the boat? I say: impeach the bastards.
Now, there are real prudential reasons not to try to impeach 4-7 SCOTUS justices. It aint gonna happen, after all, & trying will just escalate hostilities with an already impeachment-happy Left. But that we're in this situation doesn't affect the oath-breaking argument one whit.
The linked article's version of the "you gonna impeach??" argument founders b/c it assumes, first, that originalists can't just say "YES.jpg", and, second, that originalism is the same thing as procedural liberalism. https://americanmind.org/features/waiting-for-charlemagne/the-originalist-inquisition/
It's not. In fact, it's the liberal proceduralists, e.g. Cass Sunstein, who find the oath-breaking argument abhorrent. After all, it implies that the procedures of government aren't self-regulating, but rather have to be build on moral foundations.
note: I agree with this thread https://twitter.com/Originalism1/status/1263908186312114177 that at least some forms of sincere mistake shouldn't be impeachable, though, as I argue in the replies, some forms should (namely, where the sincere mistake concerns, not the oath's application, but its content)
