Kavanaugh is no threat to established precedent

Opponents of Brett Kavanaugh’s nomination to the Supreme Court recently fastened on a speech in which he endorsed the idea that the Constitution ought to be interpreted according to the original mean of the words of the text. They say they are terrified that this will lead to the overruling or narrowing of the right to privacy discerned in Griswold v. Connecticut; overruling of Roe v. Wade; and the overruling of Obergefell v. Hodges, the case which recognized that same sex couples have a right to marry.

First, all legal texts including precedents like Roe v. Wade are interpreted to have the original meaning that they had when they became law. If a judge suddenly announced that he was going to interpret the Supreme Court’s opinion in Roe v. Wade or the Civil Rights Act of 1964 in light of its “evolving meaning in a maturing democracy” we would call in a psychiatrist. Judges are supposed to read the text of the constitution the same way one spouse reads a shopping list prepared by their spouse, which is according to the original meaning of its words. This is just basic common sense.

{mosads}Second, there are legal texts in the constitution, which were deliberately left open-ended by the Framers knowing that as Judge Robert H. Bork, an originalist, once wrote: “The world changes in which unchanging values find their application.” The Constitution gives Congress the power to raise an army and to provide a navy, but it does not mention a power to create an air force or a space force. However, the Constitution also gives Congress the power to pass “all laws, which shall be necessary and proper for carrying into execution its power to raise armies and to provide navies. In a world where armies and navies could be pulverized in minutes by a hostile air force or space force, it is obviously both necessary and proper for Congress to create a U.S. air force and space force even though the framers never thought about the matter.

We apply legal texts with an original meaning like “necessary and proper meaning convenient to or useful to” to a world that has changed radically in the last 10 years not to mention the last 229 years. Obviously, modern technology means that Congress can now do things under the Necessary and Proper Clause that were once unimaginable. But, that is not a problem for originalism because while originalists derive the meaning of a clause from the original understanding, they apply it to a world and to facts that the Framers could not have imagined.

As an originalist and an historian, I believe that the original public meaning of Section 1 of the 14th Amendment guarantees that “all persons are born free and equal and have a natural and inalienable right to enjoy and defend life and liberty; to acquire, possess, and defend property; and to pursue and obtain happiness and safety.” No one can enjoy life or liberty or pursue and obtain happiness if they do not have a right to privacy. That includes the right to take birth control pills, to take the morning after pill or use IUDs, and to enter into same sex marriages if that fits their sexual orientation. I have defended the outcomes, although not the reasoning of Griswold v. Connecticut and Obergefell v. Hodges in my academic writing as an originalist without even getting to the fact that as a matter of precedent I consider both of those cases to be settled law.

Did the framers of the 14th Amendment know in 1868 that the rights to enjoy life and liberty and to pursue and obtain happiness and safety would mean that in 2018 that same sex couples have a right to marry? No, of course they did not know that. Today, we know that in a world where all persons are born free and equal that means same sex couples are born with the same right to marry as are opposite sex couples. Same sex couples cannot enjoy life and liberty or pursue and obtain happiness and safety if they cannot marry their spouse.

When the Constitution is specific — as in saying that the president must be at least 35 years old and that each state is entitled to an equal number of senators — we follow it. When the Constitution is written more open-endedly as in the Necessary and Proper Clause or the 14th Amendment, we must apply the original meaning of the words as best we can to the changing world that we live in today.

Kavanaugh’s critics also accuse him of being a follower of former Chief Justice William Rehnquist, because Kavanaugh is an originalist. Bu this is just plain wrong. Chief Justice Rehnquist believed in judicial restraint — not in enforcing the original meaning of the Constitution. He was a conservative legal realist who was wrong about Brown v. Board of Education, a case which I have in a law review article shown is correct as a matter of original meaning. One is not born free and equal if you can only go to a separate school or only marry a person of your own race. Originalist such as me and Stanford’s Professor Michael McConnell have written at length about why Brown v. Board of Education is based on a correct reading of the original meaning of the 14th Amendment.

Steven G. Calabresi is a co-author of “The Unitary Executive: Presidential Power from Washington to Bush” and the Clayton J. & Henry R. Barber Professor at Northwestern Pritzker School of Law.