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PaperclipPerfector  10mo ago (text post)   26210 thread views

Culture War Roundup for the week of January 1, 2024

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I wouldn't go so far as endorsing it as the second axis on a 2D graph, but Indian Law does hold a special and odd place in constitutional jurisprudence, because of its relation to how one views old laws and treaties. With regard to Gorsuch, the link I provided in this post sums up that relation. This blog post from a Stanford Law professor expounds a bit more and also touches on what I consider an important theme in both Indian Law and constitutional questions more broadly - a lot of technicality is bullshit, an excuse to arrive at the conclusion that someone wants:

Indian law is not unique in involving judicial uses of history. But not only is Indian law exceptionally historically focused, it is also different from, for instance, the more familiar fights over originalism. While struggles over constitutional history often concern grand and abstract principles and attract significant attention, Indian law cases are often viewed as minor—Justice Brennan reportedly once referred to them as “chickenshit”—and their outcome likely turns on the very local and specific pasts of a particular reservation, treaty, or centuries-old statute. The indeterminacy of these histories gives judges remarkably wide rein to craft the law as they see fit: “[W]hen it comes to Indian law,” the late Justice Scalia once quipped, “most of the time we’re just making it up.”

Law, in other words, is not determinate, and Indian law is especially malleable. Historians, particularly those working on indigenous pasts, would do well to keep this interpretive uncertainty in mind. More than in most areas of law, their accounts can carry considerable legal weight, not only when historians are explicitly serving as expert witnesses, but also when their monographs and articles are repurposed for unanticipated ends.

Gorsuch tends to really, really not like that aspect of other's reasoning and it shows up a lot in his emphasis on the position that the text says what it says, it's actually entirely clear, and you can't make up different readings because they're more convenient.

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