Near the end of Richard Dawkins’ “The Blind Watchmaker” he presents a fictional debate between a “Real-life” and “Caricature” Darwinian. The caricature says that selection didn’t favor bats having wings like angels (which are separate from their arms). As human beings we assume arms are for manipulation (like Waldo), for most animals they are for locomotion and wings take care of that. Furthermore, breathing fire like a dragon would be quite costly (and likely dangerous), and a cow jumping over the moon would be signing its death-sentence (in addition to terminal velocity being quite costly to obtain). I know there are some good evo-devo type arguments about the constraints of past development, but Dawkins doesn’t seem good at coming up with good examples.

I was going to note something off-topic, but on further thought I think it is on-topic. Opening a pdf a few minutes ago I noticed one I have opened yesterday but not read any of*. It was about the original meaning of “cruel and unusual”, with an emphasis on the latter adjective. I had heard before that the phrase was a legal term of art dating back to Freeborn John, but I can’t remember where I had come across that either. How is that on-topic? In reading Orin Kerr’s Constitutional Theory Debates in a Nutshell (Or a Lot of Them, Anyway) I saw that the sticking point was that originalism would force us to adhere to antiquated and extremely unpopular views, a bullet I’ll openly bite. In a literal sense, I don’t resemble Kerr’s caricature, since it is of a “faint-hearted” originalist, but I do resemble the reductio presented by the hypothetical anti-originalist. One thing I’m surprised few originalists mention is that to the extent such policies are unpopular, we should expect basic majoritarian politics to do as able a job as the court in restricting their use. The question of why we should expect courts to do a better job is rarely asked. One could argue that, like the senate, obstruction is a virtue all its own even when the obstructors are not much better than the obstructed, but the senate is unpopular enough that few think there is anything positive to imitate.
*I still haven’t read much of it, or the second paper I’m linking to here. It also occurs to me that this new interpretation suffers from the same ratchet-effect terminating in a null set of available punishments that originalists complain about for the “evolving standards” version. But a bullet-biter should be able to say that we can use the amendment process when we get to that bridge.

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