No, Kavanaugh’s Judicial Originalism Is Not A Pretext For Racism And Sexism

No, Kavanaugh’s Judicial Originalism Is Not A Pretext For Racism And Sexism

The flawed argument boils down to the idea that the 'original' intent of the founding fathers doesn't matter, because they were imperfect people.
Noah Diekemper
By

A Los Angeles Times op-ed this week purports to use former Supreme Court justice Thurgood Marshall’s ideas to explain the problem with Supreme Court nominee Brett Kavanaugh’s “originalism.” Alas, it says little about Kavanaugh and less about originalism. Instead, it makes the judicial debate about idols, personalities, and party fealty — everything that has disgraced courts for the last 30 years and more.

Michael Long characterizes Kavanaugh’s originalism with the phrase “original intent” three times, but makes no further effort to explain or even describe the philosophy. “Original intent” is a phrase typically used by people who haven’t given the matter careful thought or are speaking off the cuff.

No one seriously holds that the Constitutional Convention had a single unifying “intent” that our nine supreme jurists are meant to mind-read based on the extant documentary evidence. This is obvious on reflection, not least considering that the Constitution was a committee document and that its own architects clashed over aspects of its meaning, most notoriously Hamilton and Washington against James Madison,  John Jay, and Thomas Jefferson over the constitutionality of a national bank.

Mainstream originalism looks for original meaning. Words like “necessary and proper” and “right of the people to keep and bear Arms” have a meaning no less than do “freedom of speech” or “Power of Impeachment,” because they are English words written in the Eighteenth Century according to the rules of English grammar and syntax. That meaning may not always be clear, but it is the definite objective of judicial interpretation. Any idiosyncratic or even widespread thoughts any Founders may have held are tangentially relevant, if that.

Yet by identifying Kavanaugh’s judicial philosophy with the Founders’ “intent,” Long can effortlessly entwine Kavanaugh’s legal approach (the common and fair idea that the judge apply the meaning of the text, i.e., the law) with ideas about slavery and women not voting. His argument then, buttressed by quotes from Marshall, goes something like this: America at her Founding was imperfect; therefore, we need not heed the “original intent” of the men who established that flawed charter.

This is cheap rhetoric that reduces a debate about legal philosophy into a contest of idols. Long even quotes Marshall on the point: “Nor do I find the wisdom, foresight, and sense of justice exhibited by the Framers particularly profound.” That is not particularly relevant. “We the People” ratified our Constitution, which is why it is the law of our land. It’s also why no Democrat actually holding an office ordained by that Constitution recommends the rest of American disregard him as holding illegitimate power.

Nor does it matter that Marshall considered our Constitution “defective from the start, requiring several amendments,” etc. This entirely elides the fact that the Constitution allowed for an amendment process, “from the start.” The idea that any subsequent amendment, even the 14th, could provide “a new, more promising basis for justice” (emphasis mine) is incoherent. Americans need abide by the 14th Amendment because it is an amendment on our Constitution, which is the supreme law of our land.

Most tellingly, Long gives no suggestion what he would look for in a judicial nominee. His particular idol, Marshall, did. A former law clerk of his recounted the anecdote: In the 1970s, Justice Marshall was asked at lunch by a clerk of his “to describe his judicial philosophy.” His now-infamous answer: “You do what you think is right and let the law catch up.”

This is tyranny, of course. It is also an approach not without other shortcomings. To borrow from the writings of another Supreme Court nominee, Robert Bork, let us try to imagine leftists overjoyed at this philosophy’s adoption by their local sheriff, the Joint Chiefs of Staff, or President Donald Trump. Perhaps Trump believes it is the right thing to keep foreign-made goods offshore and send immigrants, ex-Director James Comey, and Attorney General Jeff Sessions with them. That does not mean that he should use all of his many armed employees to do so.

Of course, that is why we have a state in the first place, with her elected lawmakers, law enforcement officers, and impartial judges, all with narrowly defined jobs. This is why “apply the written law” is so invaluable a philosophy. One may right an isolated wrong (or what one, alone, believes to be a wrong) by transgressing the agreements of a society or the norms of a system that was supposed to endure in perpetuity. It also then becomes hard to argue when your neighbors, with their own ideas about what is right and wrong, adopt your own short-term logic.

This is why it is the job and responsibility of a judge to interpret and apply the law as written. This is no trivial task — it involves applying 18th-century prose to new technologies, for example — but its end goal is clearly defined and fairly. It is the only way to attain “a government of laws and not of men.” And the present hysteria over the individual now joining our highest court, one man among nine, is a testament to how far we have abandoned that ideal.

Noah Diekemper is a graduate of Hillsdale College and an M.S. candidate at Loyola University Maryland.

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