Read on Twitter
Since I& #39;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://www.jordanlperkins.com/post/on-t... https://twitter.com/Originalism1/status/1263486953661612040">https://twitter.com/Originali...
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://www.jordanlperkins.com/post/on-t... https://twitter.com/Originalism1/status/1263486953661612040">https://twitter.com/Originali...
If the anti-originalist point is merely, as I take this paragraph to be saying, that "positivistic" history & sociology aren& #39;t enough, you can& #39;t interpret law without practicing law---I agree. I& #39;m not a legal positivist.
But then the question becomes WHICH law you& #39;re practicing.
But then the question becomes WHICH law you& #39;re practicing.
Which is where the THIS of "this Constitution" comes in. It doesn& #39;t tell you what a Constitution is, but it tells you you& #39;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& #39;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& #39;s how traditions work.
The circle doesn& #39;t tell you what a Constitution is--that requires historical retrieval--but it& #39;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& #39;t get it. Does that work as a gotcha against originalist law profs who don& #39;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& #39;re in this situation doesn& #39;t affect the oath-breaking argument one whit.
The linked article& #39;s version of the "you gonna impeach??" argument founders b/c it assumes, first, that originalists can& #39;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/">https://americanmind.org/features/...
It& #39;s not. In fact, it& #39;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& #39;t self-regulating, but rather have to be build on moral foundations.
note: I agree with this thread https://twitter.com/Originalism1/status/1263908186312114177">https://twitter.com/Originali... that at least some forms of sincere mistake shouldn& #39;t be impeachable, though, as I argue in the replies, some forms should (namely, where the sincere mistake concerns, not the oath& #39;s application, but its content)
