Kavanaugh’s Originalism Is Not Just Conservatism In Disguise

Brett Kavanaugh’s recent appointment to the Supreme Court makes him the fifth justice who generally believes in Constitutional Originalism. Like its chief theoretical rival, Living Constitutionalism, Originalism has many nuances. Justice Kavanaugh’s understanding of it will by no means always result in the same rulings as Justice Thomas’s. All Originalists, however, consider themselves bound by the meaning of the text.

What motivates judges to interpret the law in this way? To many, such an approach seems foreign. Why should present-day society be forced to live by antiquated and objectionable definitions of equality, liberty, and democracy? Might 21st-century Americans have a better understanding of what “We the people of the United States” means? Why should we in the present be ruled by the so-called dead hand of the past? Thus go standard criticisms from those who view the Constitution as a living, breathing document that adapts to the needs and goals of today’s society.

Living Constitutionalism has been in fashion since the rise of modern liberalism. This legal philosophy offers an easy solution to the problem of rapidly changing realities related to race, gun violence, gender, and sexuality. Confronted with originalist justices who rule for greater restrictions on women’s access to abortion, expanded gun liberties, and a strictly heterosexual conception of marriage, it is easy for some to simply write off Originalism as not a legally respectable way for conservatives to get their desired results on partisan or ideological issues such as abortion, gun control, and same-sex marriage.

The fact is, however, that there are strong theoretical and methodological reasons, independent of political ideology, in support of Originalism. It has its share of problems, to be sure, but it is undoubtedly a legitimate and formidable contender in debates over constitutional interpretation.

The central concern motivating originalists is that if a judge does not interpret a law or constitutional clause to mean what it originally meant, then the judge has illegitimately made up a new law. There are really two basic insights here: it is not the job of the judge to make law, only to clarify its meaning; and the meaning of a law (including the Constitution, which is also law) is fixed at the time of its enactment.

Our system was set up with three branches of government, each with a distinct task. It is the job of the legislative branch to make the law, the job of the judiciary to clarify the meaning of laws (and to decide whether they’re constitutional) when disputes about them arise, and the job of the executive to enforce laws. In our democracy, the people through their elected representatives get to make the laws; unelected judges do not. Judges are not tasked with updating the Constitution, but are merely supposed to apply it. Congress updates the Constitution by proposing and ratifying amendments, which it has done seventeen times following the adoption (shortly after the Constitution took effect) of the Bill of Rights.

According to Originalism, the law, or clause in the Constitution, must mean the same thing it did when it was enacted. This assumption guarantees the law’s continued existence and binding force, even as society changes. And this, as Justice Scalia repeatedly emphasized, is exactly what written law is supposed to do. When the founders outlawed cruel and unusual punishments in the Bill of Rights, Scalia said, they did not mean “whatever your current society thinks ‘cruel’ and ‘unusual’ mean.” Such a law, in his view, would not have any valid binding force at all.

If the courts can just assign a new meaning to something in the Constitution, then there's really no point in a constitution at all; it just becomes whatever nine, or five out of nine, justices say it is. Living Constitutionalist judges may mean well, and may even be doing society a favor by changing the Constitution to better fit the needs and goals of present-day society. But as Scalia famously declared: “if there is no fixed absolute, if the Constitution evolves to mean what it ought to mean today, what makes you think the majority is going to leave it to judges to decide what the Constitution ought to mean? ... If there are no fixed legal standards, if the justices on the Supreme Court are supposed to tell us what are the evolving standards of decency that reflect a maturing society, a majority of the people and its political leadership will look for judges who agree with the majority as to what the Constitution means. And so we will have the absolutely crazy system in which we conduct a mini-plebiscite on the meaning of the Constitution every time we select a person to fill a vacancy on the Supreme Court.”