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09/16/2018

Randy Barnett on Judge Kavanaugh on Originalism
Michael Ramsey

At Volokh Conspiracy, Randy Barnett has excerpts from the Kavanaugh hearings in which Judge Kavanaugh discusses originalism with various Senators including Mike Lee, Ted Cruz and John Kennedy.

Kavanaugh Testimony, Part 1: On Originalism.  Here's a bit from Judge Kavanaugh on intent and public meaning, and the originalist case for Brown v. Board of Education:

[Judge Kavanaugh, in response to a question by Senator Lee]:  Now, it's very careful when you talk about originalism to understand that people are hearing different things sometimes. So, Justice Kagan, at her confirmation hearing, said we're all originalists now, which was her comment. By that, she meant the precise text of the Constitution matters, and, by that, the original public meaning—of course, informed by history and tradition and precedent. Those matter, as well. There's a different conception that some people used to have of originalism, which was original intent. In other words, what did some people subjectively intend the text to mean, and that has fallen out of the analysis because, for example, let's just take the 14th Amendment's equal protection clause. It says right in the text "equal protection" – equal means equal.

As the Supreme Court said in Strauder, what is that but the law shall be the same for the black and the white – that's Brownv. Board, which focuses on the text. But there were some racist members of Congress who didn't think it should apply in that way to certain aspects of public life. But if you're paying attention to the text, you don't take account of those subjective intentions, nor is it proper as a general proposition to take account of the subjective intentions. They could be evidence in certain cases—the First Amendment, for example—of the meaning of the words.

[…] You don't follow the subjective intention. So, original public meaning originalism—what I have referred to as constitutional textualism, and what Senator Cruz referred to as constitutionalism—I think those are all referring to the same things, which is the words of the Constitution matter. Of course, as I've said repeatedly, you also look at the history. You look at the tradition. Federalist 37 tells us to look at the liquidation of the meaning by historical practice over time. And then you look at precedent, which is woven into Article III, as I said, in Federalist 78.

Professor Barnett comments:   "This statement indicates that Kavanaugh is well aware of the modern approach to originalism that has been developed over the past 20 years: Original Public Meaning Originalism, which he was at pains to distinguish from original framers intent originalism."

Kavanaugh Testimony, Part 2: Colloquy with Senator Kennedy.  Senator Kennedy poses some interesting and somewhat skeptical questions about originalism, leading among other things to this exchange:

Kennedy:

[I]f you look at the Heller case—and I'm talking about the DC v. Heller by the US Supreme Court—it wasn't a balancing case. You made that point clear at the court of appeal level. It was a text, history and tradition case. And Justice Scalia wrote the majority opinion. Justice Stevens dissented, and they both took an originalist approach. And I went back and looked. Scalia, this is what he relied on: founding era dictionaries, founding era treatises, he looked at English laws, American colonial laws, British and American historical documents, colonial era state constitutions – he looked at post-enactment commentary on the Second Amendment. And Justice Stevens, also using an originalist approach, looked at the same documents and then he added, he relied on linguistic professors, an 18th century treatise on synonymous words, and a different edition of the colonial era dictionary that Justice Scalia used. Pretty impressive. Here's my question: Doesn't the originalist approach just require a judge to be an historian? And an untrained historian at that? Wouldn't we be better off hiring a trained historian to go back and look at all of this?

Kavanaugh:

Well, the Heller case was one of the rare cases where the Supreme Court was deciding the meaning of a constitutional provision without the benefit of much, if any, relevant precedent. On most of the constitutional provisions, there's been a body of cases over time interpreting the provision, and you don't have to do the kind of excavation that Justice Scalia and Justice Stevens did in that case because it's been done before. The reason, I think, why the Second Amendment posed a challenge in that case, in terms of figuring it out, is the prefatory clause in the Second Amendment, which the question was: Did that define the scope of the right indicated afterwards – the right of the people to keep and bear arms shall not be infringed? Or did the prefatory clause merely state a purpose for which the right was ratified, and, therefore, you read the right as written: the right to keep and bear arms shall not be infringed. To figure out what the prefatory clause meant, you had to figure out, as a general proposition, how legal documents at the time used prefatory clauses, and what the purposes of those were, and that required a lot of historical excavation by the two justices who had the competing positions.

Professor Barnett comments:   

Unlike the Democratic senators, Senator Kennedy was able to marshal somewhat of a critique of Judge Kavanaugh's originalism. If Kennedy, a supporter of the nominee can manage this, one would think that Democratic Senators who object to Kavanaugh's originalism could do the same. But, for whatever reason, they did not even try. Unfortunately, Kavanaugh did not directly respond to Kennedy's challenge of how judges can be historians, asserting instead the rarity with which they may have to do so given the existence of precedent. [

Professor Barnett continues with his own responses whihc seem basically right to me.