prior probability

John Mikhail’s answer to this question is that originalism has an originalism problem(!). According to Professor Mikhail, whose paper I mentioned in one of my previous blog posts (see below), most originalists end up applying their search for “public meaning” by selectively and inconsistently ignoring those parts and words of the Constitution that refer to natural rights. In addition, Mihkail’s paper contains two further observations that are worth commenting on:

1. First and foremost, Mikhail suggests that the best way of understanding of the founders “is that they were both natural lawyers and constitutional positivists” (p. 364, emphasis in the original). Why should the founding fathers be considered “constitutional positivists”? Because they advocated for written constitutions, both at the State and federal levels.

2. Secondly, Prof Mikhail poses an intriguing question, asking whether John Locke and Sir William Blackstone were natural lawyers or legal positivists, and makes the case that the work of both Blackstone and Locke fits the natural law tradition as well as legal positivism. In Mikhail’s words (pp. 363-364), which deserve to be quoted in full: “The answer, of course, depends on what exactly one means by those terms. ‘The state of nature has a law of nature to govern it’ certainly sounds like the claim of a natural lawyer. So do similar passages in Blackstone’s Commentaries. Yet Locke rejected the conception of innate moral knowledge that formed the basis of natural law as most seventeenth and eighteenth century writers conceived of it. And Blackstone’s definition of law as ‘that rule of action, which is prescribed by some superior, and which the inferior is bound to obey’ descended straight from Hobbes and anticipated modern positivism.”

I am reblogging my previous post on this subject in order to call bullshit on the USA Track & Field (USATF)’s vindictive and overzealous (and perhaps racist–see below) decision on Tuesday to take Sha’Carri Richardson, the fastest woman on Team USA, off our national team’s roster for the upcoming Olympics. (For the record, here is the USATF’s terse and totally unimaginative official statement.) Put aside the fact that marijuana is a legal substance in the State of Oregon, where the track and field Olympic trials took place last month. Here is my solution to this stupid predicament: Since the samples of Ms Richardson’s drug tests were collected on June 19, then why can’t we make her 30-day suspension retroactive to June 19th? The Olympics don’t start until July 23. I hate to play the race and gender cards here, but I have to ask, If Ms Richardson were a white male, would this disgraceful and unjust outcome have been allowed to happen? A further irony is that June 19 is now an official holiday in the United States meant to celebrate freedom and independence: Juneteenth.

Update (7/6): I have now finished reading the excellent books by Jim Garrison and Cynthia Saltzman. (See my June 29 blog post below.) These books were so good I want to say a few words about each.

Let’s start with Saltzman. Her book retells the story of how so many works of looted art ended up in the famous Louvre museum in Paris, including Paolo Veronese’s “The Wedding Feast at Cana.” In brief, France stole these works of art after Napoleon’s various military victories across Europe in the late 1790s and early 1800s, but Saltzman also raises an intriguing legal and moral question. Specifically, since most of the stolen works of art that populate the Louvre were ceded by treaty after Napoleon’s victories, should this fact (the existence of a treaty) make any difference as to the legality of Napoleon’s thefts, or are these various treaties themselves null and void because they were imposed by military force?

Next, let’s turn to Garrison, who was the D.A. of New Orleans from 1962 to 1973. His fascinating book is about his three-year investigation into the JFK assassination and the case he brought against Clay Shaw, charging him with conspiracy in the murder of JFK. While the evidence against Clay Shaw is mostly circumstantial, consisting of the testimony of various witnesses who say they saw Shaw and Lee Harvey Oswald together in the months before the assassination, Garrison nevertheless presents a compelling case that Oswald was framed and that JFK’s murder was the result of a conspiracy. I visited the Sixth Floor Museum at Dealey Plaza two months ago, but I don’t recall if there was any mention of Jim Garrison or Clay Shaw at that museum. If not, this omission needs to be corrected promptly.