The only good Constitution is a dead Constitution.
Judge Kavanaugh’s nomination to fill the seat recently vacated by the retirement of Justice Kennedy has once again brought conversations about constitutional hermeneutics into the popular press. Unfortunately, in no small part, talking heads who either do not know any better or do not care are (again) putting originalism in scare quotes, caricaturing, misrepresenting, or otherwise missing the mark on the subject (for more on how, see a colleague’s recent post on the subject here), going on to find the idea “troubling” – and, as relevant to Judge Kavanaugh, ostensibly disqualifying insofar as he adheres to this view.
Without doubt, Judge Kavanaugh’s upcoming confirmation hearings will feature numerous questions on the subject of “originalism.” No doubt, too, roughly half of the Senators on the Judiciary Committee will try to paint Judge Kavanaugh as some kind of “radical” who is “unfit for judicial office” owing to his originalist convictions.
This line of attack is deeply misguided, not only because they often misrepresent what originalism is in the first place. The thing is, far from “troubling,” originalism is a pretty commonsense idea that follows by necessity from having a constitution (or any viable rule of law) in the first place. Indeed, to go one step further, in our system of government, judges must be originalists – judges have no power to change what the Constitution says, only to apply what it says as faithfully as possible until such time as “We the People” who originally ratified the Constitution change it ourselves.
In fact, the only thing that would disqualify Judge Kavanaugh on this point is if he wasn’t an originalist. Allow me five minutes of your time to explain.
As my aforementioned colleague said, “Originalism is, in its broadest sense, an interpretive theory that understands legal text to retain the meaning it had at the moment is was ratified until duly amended or repealed.” In other words, originalism, as a general rule, amounts to the conviction that a given law means what it says and does not “change” or “evolve” in meaning unless and until that law is modified or change according to the method prescribed by that law. With respect to the Constitution, given “the nature and reason of the thing,” that means that the Constitution has a fixed meaning, based upon what the provision meant when it was enacted, and that meaning does not change except by way of constitutional amendment.***
Take an obvious example. According to Article II, Section 1 of the Constitution, a person must be “the age of thirty five years” before they are eligible to be President. When that was proposed and ratified, that was understood to mean a person must have been alive for thirty-five sets of the earth’s 365.25 day rotation around the sun before they are eligible to be President. No court would lawfully construe this to mean merely “someone of sufficient maturity and life experience, whether they are thirty five or not.”[T]hirty five” is not “alive” and subject to “evolution” by a judge convinced he or she knows better how to apply the “spirit” of the law to present circumstances. Thirty-five means thirty-five, and no one has the power to read it out of the Constitution accordingly. The age requirement may only be changed if a constitutional amendment is ratified to change it per Article V of the Constitution.
This example is (hopefully!) unobjectionable. Apply that same logic to other provisions, however, and people of a certain ilk recoil. Take, for instance, the death penalty. The Fifth Amendment says that “[n]o person shall be held to answer for a capital . . . crime, unless on a presentment or indictment of a grand jury . . . .” In other words, a person may be subject to capital punishment provided a certain process is followed. Some, however, argue that the Eighth Amendment’s prohibition on “cruel and unusual punishments” should be interpreted nowadays to prohibit the death penalty (either de jure or de facto). Given the Fifth Amendment, however, the Constitution “clearly permits the death penalty to be imposed, and establishes beyond doubt that the death penalty is not one of the ‘cruel and unusual punishments’ prohibited by the Eighth Amendment.” For the death penalty to become unconstitutional, then, the document must be ratified to prohibit it. Until such time as that happens, the Federal Constitution allows for the punishment, and no court – being “an inferior and subordinate authority” to the Constitution that has no authority of its own to amend it – has the power to say otherwise.
To put it simply, in our system of government, the Constitution is “dead, dead, dead,” and judges are duty-bound to treat it as such. A “living Constitution” is not really a constitution at all (or not a useful one, at least) – “the nature and reason of the thing” is to be the law that governs those who govern us. What good would it be if this document were “alive” – that is, if it were capable of “evolving” in meaning over time, so that it could mean one thing in 1791 but an entirely new or different (and contradictory or otherwise incompatible) thing in 2018, despite never being amended in relevant part? Indeed, what would be the point of writing the Constitution down, if the document were really just a list of suggestions capable of being altered at a later date solely by adopting and applying an “evolving” or “living” view of its meaning?
Many people who insist that the Constitution must be “alive” and “evolving” often selectively quote Chief Justice Marshall, who once said that the Constitution must “be adapted to the various crises of human affairs.” Of course it must be, but that does not in any way suggest that judges, let alone anyone else, are free to change the Constitution apart from constitutional amendment. Chief Justice Marshall elsewhere observed:
The powers of the Legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may at any time be passed by those intended to be restrained? . . . . The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it. . . . if the latter part be true, then written Constitutions are absurd attempts on the part of the people to limit a power in its own nature illimitable. Certainly all those who have framed written Constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be that an act of the Legislature repugnant to the Constitution is void. This theory is essentially attached to a written Constitution, and is consequently to be considered by this Court as one of the fundamental principles of our society. It is not, therefore, to be lost sight of . . . .
What Chief Justice Marshall said about the supremacy of the written Constitution is equally true of judicial interpretation as it is of legislation – the Constitution is “unchangeable by ordinary means,” and any decision “repugnant to the Constitution is void.” Neither legislatures nor courts have been entrusted with a blue pencil to revise and update the nation’s great Charter. It means what it says, and that meaning is fixed and controlling, until such time as the Constitution is properly amended to change what it says.
As renowned constitutional scholar Thomas Cooley wrote over a century ago (quoted at length by Justice Sutherland in his must-read dissent in Home Building & Loan Association v. Blaisdell):
A principal share of the benefit expected from written constitutions would be lost if the rules they established were so flexible as to bend to circumstances or be modified by public opinion. It is with special reference to the varying moods of public opinion, and with a view to putting the fundamentals of government beyond their control, that these instruments are framed; and there can be no such steady and imperceptible change in their rules as inheres in the principles of the common law. . . . [A] court . . . which should allow a change in public sentiment to influence it in giving to a written constitution a construction not warranted by the intention of its founders, would be justly chargeable with reckless disregard of official oath and public duty . . . . What a court is to do, therefore, is to declare the law as written, leaving it to the people themselves to make such changes as new circumstances may require. The meaning of the constitution is fixed when it is adopted, and it is not different at any subsequent time when a court has occasion to pass upon it.
In other words, to Cooley, unless a judge is an originalist, that judge is “justly chargeable with reckless disregard of official oath and public duty.”
One additional point merits mention here. Many people who find originalism “troubling” and who advocate for a “living” view of the Constitution seem to make a pretty naive assumption about the arc of history, apparently believing that people sympathetic to their views will retain positions of power indefinitely to mold and shape the Constitution in accordance with various preferred, “enlightened” sensibilities and values. Of course, this is false. Knaves inevitably take the reins of power from time to time. If the Constitution is truly “living,” this would be an even more terrifying prospect than it already is, for the manifold protections in the Constitution for individual liberty (due process, equal protection, privileges, immunities, etc.) would be mere “parchment barriers” – in fact, they wouldn’t even be that since the individual in charge could simply say that the Constitution has “evolved” to adapt to present circumstances and/or exigencies despite what the words on the page might have meant in the past.
In other words, neither history generally nor constitutional law specifically are one-way ratchets turning in the direction of “progressive” sensibilities. To appropriate from Bolt’s Sir Thomas More, then, liberals too should hope the Constitution is truly “dead” per originalism, “for their own safety’s sake.”
Associate Justice-Designate Kavanaugh, once confirmed, will promise to “faithfully and impartially discharge and perform all the duties incumbent upon me as justice under the Constitution and laws of the United States”–emphasis added on the preposition. To truly uphold that oath, he must affirm that the Constitution is, in fact, dead, and apply it accordingly. This is not troubling – on the contrary, this is necessary given “the nature and reason” of having a written Constitution in the first place.
This is what originalism, when done well and right, stands for. It is a shame – indeed, one might say it is even “troubling”! – that some find that proposition “troubling.” Their disagreement is not with Judge Kavanaugh, or General Meese, or conservatives writ large, but rather with the forebears of this great Republic who passed along to us a written Constitution that commands all of our allegiance as “the supreme Law of the Land.” Justice Kavanaugh, to fulfill his oath, can do nothing less than “declare the law as written” and otherwise “leav[e] it to the people themselves to make such changes as new circumstances may require.”
***For sake of simplicity, I am setting aside debates over whether certain provisions of the Constitution – such as, say, the Fourth Amendment’s prohibition on “unreasonable searches and seizures” – are underdeterminate even according to the original public meaning of the text. Suffice it here to say that even in those cases, the meaning is still “fixed” and not subject to change-by-judicial-fiat – that meaning is just not necessarily conclusive in a given case, thus leaving room for “fix[ing] the construction” more precisely at a later time.