A continuing theme in the criticism of Judge Brett Kavanaugh’s nomination to the Supreme Court has been that his references to consitutional originalism suggest he would reach a series of bad results in certain cases.
The standard indictment of originalism makes the following claims: 1) originalists think Brown v. Board of Education is wrongly decided and so they would resurrect segregation; 2) originalists oppose the incorporation of the Bill of Rights against the states and so they would let states violate fundamental individual rights; 3) originalists are opposed to equal civil rights for women and so they would uphold sexist laws and will overturn the recent Supreme Court ruling that legalized same sex marriage; 4) originalists would do away with the constitutional right to privacy; and, 5) originalists think that a constitutional provision means the same thing today as when it was adopted, which is unworkable because the world today is so different from what the world was like in 1791 or in 1868.
{mosads}Every single one of these claims is demonstrably false. These claims overlook the fact that the great Warren court liberal Justice Hugo Black was an originalist; these claims overlook the votes cast by originalist Justices Antonin Scalia and Clarence Thomas on the Supreme Court; and these claims overlook 40 years of scholarship by originalist law professors. The law professors and law school deans who are making these claims are behaving in a sloppy fashion (or worse).
First, originalist Justice Hugo Black joined the Supreme Court’s opinion in Brown v. Board of Education and neither Justices Scalia nor Thomas have ever criticized that case or failed to follow it. Originalist Stanford Law Professor Michael McConnell published a lengthy and scholarly law review article defending Brown v. Board of Education on originalist grounds, and I have published a lengthy originalist article that also defends the decision in Brown or originalist grounds, as well as an article defending the decision in Loving v. Virginia on originalist grounds, which struck down state bans on racial inter-marriage.
Second, originalist Justice Hugo Black led the charge to incorporate the federal Bill of Rights to apply against the State on the Warren Court. Justices Scalia and Thomas supported incorporation of the Bill of Rights in McDonald v. Chicago, and Justice Thomas wrote a separate concurrence making the best case yet made in any Supreme Court opinion in favor of incorporation. Originalist Yale Law Professor Akhil Reed Amar wrote a whole book defending incorporation on originalist grounds entitled: The Bill of Rights: Creation and Reconstruction (1998).
Third, originalist Yale Law Professor Akhil Reed Amar and I have both published originalist law review articles arguing that sex discrimination and sexual orientation discrimination are forbidden by the Fourteenth Amendment as read in light of the Nineteenth Amendment. We believe that once women got the political right to vote in 1920, they also got equal civil rights to those of men as well. Supreme Court Justice George Sutherland actually ruled in 1923 that the meaning of the Fourteenth Amendment was altered by the adoption of the Nineteenth Amendment. Moreover, there is settled Supreme Court precedent that establishes that sex and sexual orientation discrimination are forbidden.
From all that I know of Judge Kavanaugh and of Chief Justice Roberts, I would be astonished if those correct Supreme Court precedents on sex and sexual orientation discrimination were overridden. Judge Kavanaugh has hired more women law clerks than almost any other federal Court of Appeals judge, and he is obviously very sympathetic to the rights of women.
Fourth, the constitutional right to privacy is part of a larger originalist, unenumerated right, which provides that: “All human beings are born free and equal, and have certain natural, essential, and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness.” This right can be trumped by “just laws enacted for the general good of the whole people.” A law that forbids the use of contraceptives prevents an individual from enjoying liberty and is not a just law enacted for the general good of the whole people, so it is unconstitutional.
Fifth, and finally, originalists do believe that the meaning of the words of the constitution do not change over time, but their application may change in huge ways because of new technologies and changed circumstance. As the great originalist Judge Robert H. Bork wrote in The Tempting of America (1990), “The world changes in which unchanging values find their application.” What this means is that today the Necessary and Proper Clause empowers Congress to set up an Air Force and a “Space Force” even though no one imagined these things in 1787. It also means that the First Amendment freedom of the press applies to freedom of expression via broadcasting and the internet and not just to freedom of expression via printing presses.
The attacks on a crude caricature of originalism reveal more about the sloppiness (or worse) of those who make these attacks than they do about originalism.
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.