Kavanaugh’s Mistakes About Post Ratification History
Mike Rappaport
There is a lot to talk about in the various Rahimi opinions. The Court is clearly engaged in a serious discussion about how to do originalism.
Here I want to react to a couple of things that Justice Kavanaugh said in his concurring opinion – statements that relate to the legitimacy of considering post ratification history that is not close in time to the Framing and therefore not really informative about the original meaning.
Kavanaugh made two basic claims about such post ratification history that I think are just wrong.
First, Kavanaugh states that “when the text is vague and the pre-ratification history is elusive or inconclusive, post-ratification history becomes especially important” because “absent precedent, there can be little else to guide a judge deciding a constitutional case in that situation, unless the judge simply defaults to his or her own policy preferences.”
Wrong, wrong, wrong. In such situations, the question is a close one. But that does not mean a judge has no where to go except his policy preferences. One might argue that the judge’s obligation in those cases is to make his best judgment as to what the original meaning is, even though the issue is not clear. The question might be one where the evidence for A is 51 and the evidence for B is 49. As John McGinnis and I argue, the judge should select A, even if he prefers B on policy grounds.
In fact, Kavanaugh makes the same mistake here that many have made in defending Chevron. If the text is ambiguous, they argue the judge can only consider his policy views. I would have thought Kavanaugh rejected that view.
Second, Kavanaugh cites Justice Scalia for the proposition that “post-ratification history” from “far beyond the time of enactment” are “indicative of original meaning.” (Kavanaugh here cites Mike Ramsey.) While Scalia may have said this, it is simply not true. Even Scalia nods. It is not clear what the cut off date should be for evidence of original meaning, but for example history from after the Civil War concerning a provision enacted in 1789 does not shed light on its original meaning. Perhaps one should follow that history based on considerations similar to stare decisis. Perhaps not. But one should not follow it because it reflects the original meaning.