I wish The Hill had published this under what I assume was the original title, “Pull My Finger”:
I suppose the premise is so obviously silly it doesn’t require elaboration, but what the hell, this is a political blog:
Opponents of Brett Kavanaugh’s nomination to the Supreme Court recently fastened on a speech in which he endorsed the idea that the Constitution ought to be interpreted according to the original mean of the words of the text. They say they are terrified that this will lead to the overruling or narrowing of the right to privacy discerned in Griswold v. Connecticut; overruling of Roe v. Wade; and the overruling of Obergefell v. Hodges, the case which recognized that same sex couples have a right to marry.
First, all legal texts including precedents like Roe v. Wade are interpreted to have the original meaning that they had when they became law. If a judge suddenly announced that he was going to interpret the Supreme Court’s opinion in Roe v. Wade or the Civil Rights Act of 1964 in light of its “evolving meaning in a maturing democracy” we would call in a psychiatrist. Judges are supposed to read the text of the constitution the same way one spouse reads a shopping list prepared by their spouse, which is according to the original meaning of its words. This is just basic common sense.
Of course he’ll vote to overrule Roe v. Wade. But, anyway, this is a bunch of words next to each other. What does “originalism” have to do with precedent? There’s no grand theory required to figure out what Roe means; the question is whether he will vote to apply it going forward. SPOILER: He won’t.
As an originalist and an historian, I believe that the original public meaning of Section 1 of the 14th Amendment guarantees that “all persons are born free and equal and have a natural and inalienable right to enjoy and defend life and liberty; to acquire, possess, and defend property; and to pursue and obtain happiness and safety.” No one can enjoy life or liberty or pursue and obtain happiness if they do not have a right to privacy. That includes the right to take birth control pills, to take the morning after pill or use IUDs, and to enter into same sex marriages if that fits their sexual orientation. I have defended the outcomes, although not the reasoning of Griswold v. Connecticut and Obergefell v. Hodges in my academic writing as an originalist without even getting to the fact that as a matter of precedent I consider both of those cases to be settled law.
Great. But we were talking about Brett Kavanaugh. Look, in this context what “originalism” means is what Rehnquist once conceded “strict constructionism” actually meant when it was the conservative buzzword to jour: “a strict constructionist judge is one who favors criminal prosecutors over criminal defendants, and civil rights defendants over civil rights plaintiffs.”
Kavanaugh’s critics also accuse him of being a follower of former Chief Justice William Rehnquist, because Kavanaugh is an originalist. Bu this is just plain wrong. Chief Justice Rehnquist believed in judicial restraint — not in enforcing the original meaning of the Constitution. He was a conservative legal realist who was wrong about Brown v. Board of Education, a case which I have in a law review article shown is correct as a matter of original meaning. One is not born free and equal if you can only go to a separate school or only marry a person of your own race. Originalist such as me and Stanford’s Professor Michael McConnell have written at length about why Brown v. Board of Education is based on a correct reading of the original meaning of the 14th Amendment.
I mean it’s true enough that Rehnquist wasn’t an “originalist” — God bless him, he didn’t pretend to be motivated by some kind of grand theory. But his view of Brown was much more obviously compatible with “originalism” to the extent that it means anything at all. It’s not strictly accurate to say that you can’t construct an “originalist” defense of Brown, but you can do so only by (as Calabresi does here) by defining principles at such a high level of abstraction that any outcome can be described as “originalist.” And, more to the point, here’s a comparison between Rehnquist’s voting record and the voting record of Republican-nominated judges who call themselves “originalists”:
Which is why Rehnquist was a legal realist who told his clerks not to worry unduly about the reasoning.
And at this point…the column ends. That’s the argument: “Liberals shouldn’t worry about Brett Kavanaugh, despite his unambiguous record, because I wrote an unpersuasive article arguing that the 14th Amendment was originally understood as forbidding school segregation, and made even less plausible assertions in a column that it was originally understood as forbidding bans on same-sex marriage.” Well, I’m convinced!