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07/20/2018

Eric Posner Asks: Is Judge Kavanaugh an Originalist?
Michael Ramsey

At his eponymous blog, Eric Posner: Is Brett Kavanaugh an Originalist?  From the introduction:

If there is one thing that Kavanaugh’s critics and most ardent supports agree on, it is that he is an “originalist,” someone who interprets the Constitution according to the public understanding of it at the time of ratification (and in the case of amendments, adoption).

But there is, in fact, no evidence—at least, none I can find—that Kavanaugh considers himself an originalist. At the White House, he says only “a judge must interpret the Constitution as written, informed by history and tradition and precedent”—a standard line that could be given by anyone at all. In a video, he is asked point blank about his originalism, and he simply fails to answer. Instead, he talks about interpretation of statutes (which is not what he was asked), and only at the very end says this about the Constitution: “you start with the text but there are whole bodies of precedent on all of these areas or most of all of these areas of constitutional interpretation.” Not much of answer, and certainly not a ringing endorsement of originalism.

In fact, in his writings, Kavanaugh hardly mentions originalism at all. A textualist, yes. An enthusiastic fan of Justice Scalia, yes. But also a fan of William Rehnquist, no one’s idea of an originalist.

(For people who don’t follow legal debates, a “textualist” is someone who, when interpreting statutes [Ed.:  and the Constitution], places primary weight on the normal meanings of the words [Ed.: typically, at the time they were enacted], rather than on legislative history, the purpose of the statute, public policy, etc. A textualist is not necessarily an originalist, indeed, the two ideas are in tension, as the originalist tends to fall back on constitutional purposes as reflected in the contemporary [Ed.:  I think he means "contemporaneous" here] public debate because the constitutional text is so often vague.)

I agree that Judge Kavanaugh is strongly textualist.  See this post, for example.  Given his professed admiration for Justice Scalia, I also think that means he's an original meaning textualist.  Most, though not all, textualists look for the meaning of the text at the time it was enacted, as Scalia emphasized in Reading Law (p. 78), and I'd be very surprised if Judge Kavanaugh did not agree with that proposition.  And given that, I assume he would use standard originalist materials to try to determine original meaning.  I agree with Professor Posner that it's more of a question how far he would go into historical materials to resolve ambiguities on the basis of the framers' purposes or expectations, as opposed to their use of language.  (This is also something Justice Scalia struggled with, as I've discussed).  But I would still call him an originalist if he is looking for the text's original meaning, even if he's skeptical (as Scalia was) of arguments from framers' intent.