![What the founding generation understood as an establishment of
religion is a legal question to be decided by a court, not a “fact” question to
be decided by experts, no matter how credentialed. To be sure, courts must
make a determined effort to grasp the relevant history bearing on that legal
question. Hilsenrath, 136 F.4th at 491 (“This kind of historical inquiry
requires serious work.” (citation omitted)); McDonald v. City of Chicago, 561
U.S. 742, 803 (2010) (Thomas, J., concurring) (noting “[h]istorical
analysis can be difficult”). See generally Heller, 554 U.S. at 592–95, 600–03,
605–19. They do so by consulting articles, books, and historical sources and
bringing their own independent judgment to bear on them—not by
appointing an “expert,” whose “findings” are insulated by clear-error
review on appeal.57
_________________](https://cdn.bsky.app/img/feed_thumbnail/plain/did:plc:aw426jbgw7drhivb4ijrizlu/bafkreicuhm57wg3uztocexdatbhgzvoarrnm2afvhfffhqrvtoh4iinnle)
What the founding generation understood as an establishment of religion is a legal question to be decided by a court, not a “fact” question to be decided by experts, no matter how credentialed. To be sure, courts must make a determined effort to grasp the relevant history bearing on that legal question. Hilsenrath, 136 F.4th at 491 (“This kind of historical inquiry requires serious work.” (citation omitted)); McDonald v. City of Chicago, 561 U.S. 742, 803 (2010) (Thomas, J., concurring) (noting “[h]istorical analysis can be difficult”). See generally Heller, 554 U.S. at 592–95, 600–03, 605–19. They do so by consulting articles, books, and historical sources and bringing their own independent judgment to bear on them—not by appointing an “expert,” whose “findings” are insulated by clear-error review on appeal.57 _________________
And then, in one last bizarre twist, the Court says that judges aren't allowed to ask experts in history about questions of history, because experts impact "independent judgment."
Brb going to scream.
