Kavanaugh and The Original Sin of Originalism
It looks like the United States Senate will confirm Bret Kavanaugh, President Trump’s nominee to the Supreme Court, even though, over the last several weeks, the public has heard multiple damaging stories about Kavanaugh, including but not limited to—
credible allegations of multiple sexual assaults;
credible allegations of perjury;
a largely concealed record of his involvement in potentially unethical or illegal decisions during his shadowy tenure in the George W. Bush administration;
hyper-partisanship demonstrated in his years as a Republican political operative that was in full public view at his most recent Senate hearing addressing the allegations of one of his accusers, Doctor Christine Blasey Ford; and
the suspiciously sudden payment, by one or more third parties, of Kavanaugh’s substantial debt, which previously exceeded $200,000, about the amount of his one-year salary.
Although every one of these allegations gave Senators strong reasons to investigate and, if corroborated, vote no, that’s not exactly what happened. Instead, a purposely rushed and narrow FBI investigation merely served as the anxious build-up sequence on this anticlimactic reality TV show. And while all of this proves just how little respect for the Supreme Court and the American people this Administration and its Republican enablers have, part of the problem is also that Kavanaugh’s noxious judicial philosophy, called “Originalism,” has not gotten the attention it deserves. Here, then, the focus is only Kavanaugh’s Originalist judicial philosophy, which was and still is, at this last minute, sufficient cause for every Senator of good conscience to vote no.
Originalism, in Justice Scalia’s words, views the Constitution as “dead, or … enduring,” that “[i]t means today not what current society, much less the court, thinks it ought to mean, but what it meant when it was adopted.” At Kavanaugh’s confirmation hearing he more than once proudly stated he was an Originalist. Pledging allegiance to Originalism at such hearings nowadays is a fashionable answer to a softball question, evoking a moment of levity through affirmation among the converted. The believers are mostly conservative Republicans, although Justice Elena Kagan, considered one of the Supreme Court’s liberals, said at her confirmation hearing in 2010, “We’re all Originalists now.” And it is exactly because of this cultish acceptance among even the ideologically opposed that Originalism deserves more attention, for not only is Originalism perched on patently false premises but it is also a judicial philosophy imbued with perilous power.
Exacerbating the problem is a dizzying confusion, because Originalism today is not what it used to be and yet it is still, as always, also not what it is claimed to be. Debates about its merits raged in academia and the courts throughout the 1980s and 1990s, and its numerous fatal flaws were exposed. So it changed. And one of the only things the original Originalists took from their original Originalism was the lie that the Constitution means whatever conservative Republicans say it does.
The Origins of Originalism
Imagine you’re a racist white man in his fifties or sixties in the late spring of 1954. The Supreme Court, in Brown vs Board of Education, has just done the unthinkable. It has ruled that segregation of students in public schools based on race is unconstitutional. That means black students going to school with white students. To them, it was horrifying.
Adding insult to injury, the Supreme Court based its segregation-ending decision on the Fourteenth Amendment. This is odd considering the Congressmen who addressed the issue between 1865 and 1868, when the Amendment was debated and then ratified, denied that it would open the door to such unthinkables like co-racial schooling and mixed racial marriage. And, besides, the Supreme Court, in Plessy vs Ferguson, had already declared segregation constitutional. To the typical racist white man in his fifties or sixties in 1954, when the Court in Brown suddenly overturned that bedrock case, it must have seemed like the world was turning upside down.
What the hell? Most of the Founders owned slaves! They clearly acquiesced to the institution of slavery. Some proudly endorsed it! The pre-Thirteenth Amendment Constitution literally enshrined slavery and its inherent racism into this nation’s legal fabric. Sure, after the Civil War it makes sense that slavery is illegal, and we had a constitutional amendment to that effect. But there’s not much more that needs to be done now! Racism and emancipation can learn to coexist. But a white man need not have to learn to coexist with blacks equally under the law if “equality under the law” now means you can be racist only in your mind and not in your actions! That’s why the ratifiers of the 14th Amendment, that great vestige of the Reconstruction Era, agreed with us — the racist white men in their fifties and sixties in 1954 — that blacks and whites should be segregated and should certainly not be allowed to marry each other.
The logic is sound. If so many of the Founders were slave-owners and the Fourteenth Amendment was drafted and ratified by numerous pro-segregationists, then shouldn’t the Constitution always be interpreted racistly? Isn’t that what the Founders intended or, rather, what they meant?
One can imagine Originalism being born in the conservative war room as they planned their counterattack on Brown v Board of Education and the civil rights cases that followed. Without the cabal’s meeting notes one can only speculate, but in 1952, as the parties in Brown were making their way up the court system, former Chief Justice William Rehnquist, then a clerk to Justice Robert H. Jackson, wrote a memo entitled, “A Random Thought on the Segregation Cases,” stating he believed Plessy v Ferguson was “right and should not be overturned.” The esteemed judge Learned Hand, in 1958, criticized the Brown decision as an example of the Court “assum[ing] the role of a third legislative chamber.” And even President Eisenhower, after nominating Earl Warren to the Supreme Court just as Brown was to be decided, invited the future Justice most synonymous with both the blessing of civil rights and the plague of judicial activism to a White House dinner, where the president told him: “These [southern whites] are not bad people. All they are concerned about is to see that their sweet little girls are not required to sit in school alongside some big overgrown Negroes.”
But it was not until the 1970s, after the shock and awe of the 1960s’ counterculture and the Warren Court’s perceived expansion of the rights of blacks, homosexuals, and especially women, that conservative pot shots turned into a coherent war strategy.
The most influential original Originalists were Robert Bork, Edwin Meese, and Raoul Berger. Bork, a failed nominee to the Supreme Court in the late 80s, in turn drew on Columbia and Harvard law school professor Herbert Wechsler’s theory of “neutral principles,” which they viewed as the only way of deciding cases without political or personal bias, a necessary element for judicial acts to be legitimate under the democratic theory underlying their judicial philosophy. Wechsler could not find any neutral principle that made Brown v Board of Education a legitimately decided case, although he lamented this because, according to Bork, Wechsler “thoroughly approved of [Brown’s] result on moral and political grounds.” Bork, on the other hand, could justify Brown on neutral principles — but only by limiting its scope to governmental racial discrimination against blacks rather than by espousing some cockamamie broad right of equality that sprang into existence from nothing.
Bork and others supply ample evidence from the legislative history of the Fourteenth Amendment that convincingly demonstrates the Amendment was not, in fact, intended to open the door for invalidating segregation and miscegenation laws. However, they also show that the real meaning of the clause and its scope was barely agreed upon by its drafters and ratifiers; it was worded broadly enough to satisfy even opposing understandings, a great way to guarantee votes. Bork argues that one thing is nonetheless clear: the 14th Amendment “was intended to enforce a core idea of black equality against governmental discrimination.” Whether intended or not, limiting the Fourteenth Amendment as such, while championing state’s rights through the Tenth Amendment, was an effective method of limiting non-white-male rights and upholding “traditional values” under the guise of judicial restraint and democracy.
Largely giving up on Brown, Bork and others went after the Warren Court elsewhere, especially in the gender and sexual reproduction line of cases, arguing Griswold v Connecticut, in which the Court held that married couples have a right to use contraception, was “an unprincipled decision,” “improper,” and “intellectually empty.” Criticizing another professor’s take on Shelley v. Kraemer, which held that the Fourteenth Amendment forbids state court enforcement of a private landowner’s racially discriminatory restrictions on his own land, Bork observed: “[The case] converts … the [Fourteenth] [A]mendment whose text and history clearly show it to be aimed only at governmental discrimination into a sweeping prohibition of private discrimination,” for which “[t]here is no warrant anywhere…” That is, racism and emancipation coexist just fine as it is, and the courts have no power to upset the ecosystem.
For years Bork championed the idea that the Constitution must be strictly interpreted according to its original intent. “I want to demonstrate that original intent is the only legitimate basis for constitutional decision and I wish to meet objections that have been made to that proposition,” he announced in a speech at the University of San Diego Law School on November 18, 1985 (emphasis mine). In a 1982 article in The New Republic: “The truth is that the judge who looks outside the Constitution always looks inside himself and nowhere else.” The alternative was a tyranny of the judiciary.
In a speech before the American Bar Association, President Reagan’s then-attorney general Edwin Meese III likewise argued that the judiciary must adopt a “Jurisprudence of Original Intention.” He was sincere about his intentions: “It has been and will continue to be the policy of this administration to press for a Jurisprudence of Original Intention. …[W]e will endeavor to resurrect the original meaning of constitutional provisions and statutes as the only reliable guide for judgment” (emphasis mine). Notice, for future purposes, the words “intention” and “meaning” appear intertwined conceptually, if not interchangeable. And notice that Meese did the Reagan administration’s bidding, as did Justice Antonin Scalia, the world’s most famous Originalist, who was nominated by Reagan and confirmed to the Supreme Court a year later.
Raoul Berger, a Berkeley and Harvard law school professor, went further than perhaps anyone else in attacking the Warren Court’s jurisprudence since 1954, including Brown. In his magnum opus, Government By Judiciary: The Transformation of the 15th Amendment, Berger “argued that most of the Warren Court’s civil rights jurisprudence was illegitimate, including the desegregation, reapportionment, and voting rights decisions, the incorporation doctrine applying the Bill of Rights to the states, and the decisions prohibiting sex discrimination and recognizing fundamental rights of privacy and personal autonomy.” That is because, according to Berger, it is clear from the legislative and historical record that the Founders and the ratifiers of the Fourteenth Amendment, who had left us a “transcript of their minds,” did not subjectively intend these results and, thus, the Court was powerless to interpret the Constitution in such a way without usurping the powers of the other two branches. The tyranny of the judiciary was upon us.
True to form, these Original Originalists argued that their philosophy was nothing new, that the origins of Originalism can be conveniently found in the Founders’ own judicial philosophy. They cite Madison and early Supreme Court Justice Joseph Story, among others, in support of their claim. But, although certain traces of Originalist reasoning can be found in such near-universally reviled Supreme Court opinions as Dred Scott v Sanford and elsewhere, both self-proclaimed Originalists and its biggest critics have, unsurprisingly, found historical evidence that challenges this claim. This includes evidence that Madison and Hamilton at times disagreed over the exact role of the judiciary under the Constitution and that both changed their minds on the meaning and application of certain constitutional provisions.
In any event, how does Originalism really work? Well, you start with the text of the Constitution and, if it’s clear, you don’t do anything else — adjudicate away, judge. If the text isn’t clear, which even many Originalists agree just happens to be the majority of the time, then you resort to the legislative and historical record, or what I will call the “Ordained Texts.” According to Bork, the Ordained Texts comprise the
records of the Philadelphia convention, records of ratifying conventions, the newspaper accounts of the day, the Federalist Papers, the Anti-Federalist Papers, the constructions put upon the Constitution by early Congresses … executive branch officials … and … courts, as well as treatises by men who, like Joseph Story, were thoroughly familiar with the thought of the time.
Read all of that, then reread the text of the Constitution, and you’ll derive its original intent. In so doing, the Original Originalists promised, you’ll ensure the judiciary doesn’t become too powerful and thus dangerous to liberty. You’ll ensure our system rests on a neutral, principled and, thus, legitimate foundation. You’ll ensure that America is and will always be what it was intended to be. And, of course, you’ll also ensure major revisions to the most consequential Supreme Court decisions since 1954.
The Great Debates
As Originalism pushed back the Warren Court’s so-called judicial activism in the “Segregation Cases” and beyond, non-believers pushed back on Originalism. Beginning in the 1970s and throughout the 1980s and 1990s , the dissenters were mostly liberal professors and judges, and their zeal for the sanctity of the Warren Court’s civil rights decisions probably matched the Originalists’ zeal for expanding rights no further than the morally righteous but constitutionally flawed Brown would allow.
By this time it was hard for anyone to argue that the morally right thing to do was not to end segregation. Even Rehnquist later publicly agreed that Brown was rightly decided, claiming the words he wrote in the first person in 1952 did not, somehow, reflect his views even at the time. Others, such as Earl Maltz, as late as 1990 continued to argue that Brown, lamentably, was illegitimate. But already by 1971, when President Nixon nominated Rehnquist to the Supreme Court, Rehnquist knew one simply couldn’t challenge Brown and the other Segregation Cases as both morally good and settled law and expect to be confirmed to the Supreme Court.
While by the 1970s Originalism had attained the highest places in the halls of power, it was not generally held in such high esteem in academia. In 1980, Paul Brest’s The Misconceived Quest for Original Understanding dealt a resounding blow to Originalism’s logical, practical, and moral defenses. Brest recognized that Originalism had already fractured into discrete, sometimes incompatible denominations — from Strict Textualism and Strict Interpretivism to Moderate Interpretivism. But, he argued, even Originalism’s tamest beast — Moderate Interpretivism — was hardly the panacea its proponents claimed it to be. All the more so for Originalism’s wilder ones.
Brest, along with H. Jefferson Powell in the 1980s, as well as Jack Rakove and Bret Boyce in the 1990s, identified various problems with Originalism that spanned across Originalism’s expanding spectrum, applying with more or less force at different points. Among these problems are ones that naturally occur when searching for a single intent among many people. Foremost among them, there often isn’t one single intent. And even when there is one, how do you apply it to novel circumstances, especially ones that were unforeseen or unforeseeable? Another problem strikes at Originalism’s democratic heart— unforeseeable to whom? To “the Founders” (only landowning white males)? Or to the ratifiers (same)? Or to “the people” (which did not then include blacks or native Americans, and may or may not have included women depending who you asked). And perhaps the core complaint for many was, regardless of what definition Originalists use to identify the “democratically legitimate” group whose word matters, there’s the undemocratic curse of letting any of these people rule future generations from the grave.
Whatever else one said about Originalism, everyone seemed to agree, however, that if followed faithfully, Originalism would be precedent-destroying. It would require overturning much of the Supreme Court’s established law since 1954.
Given the stakes, the pushback against Originalism was forceful and comprehensive. So much so that, in arguing counterintuitively that Originalism had not only survived the onslaught but actually prevailed, Georgetown Law School’s libertarian Originalist professor Randy Barnett, perhaps unwittingly, also admits these criticisms forced Originalism to evolve into something very different than what it was originally intended to be.
The Sleight of Hand
For such strident proponents of remembering history, Originalists seem too quick to forget their own. Around the early- to mid-Nineties, with its fatal flaws exposed, Originalism began to adapt, shrinking its all-encompassing ego and morphing from the exclusive methodology to divine proper laws into little more than a truism — that judges should read what the Founders said about the Constitution to assist their interpretation of it. After this great little shift, all that is left of the original Originalism is the false notion that the Founders happened to believe everything conservative Republicans currently believe.
In the war against the Warren Court’s perceived expansion of rights, Originalists had made a strategic retreat. From very clearly focusing on the Founders’ subjective intent to now? Of course, it’s not about subjective intent! From very clearly emphasizing that reading the text of the Constitution and reviewing the Ordained Texts were not only all that was needed but also all that was allowed if the judiciary is to be legitimate, to now? Of course they’re not the only things you have to do but one of many! And, most important, from very clearly seeking to suppress non-white-male rights to now? Of course it has nothing to do with racism and suppressing rights! But this last one mattered only because the popular ethos had not only rejected racism but also sought its extinction, and the popular will was for government not only to be free from racism but also to assist in its demise.
So how do you pretend away racism? You distinguish “intent” from “meaning.” No, no, no — we don’t look for what the Founders’ intended — that’s silly. We look for what the Constitution meant to the Founders — or to the people — or to whomever. It’s not clear how this new Originalism doesn’t fall prey to many if not all of the previous criticisms. But by moving away from specific intent which could not but admit that so much of the Constitution was imbued with racism, Originalists were able to obscure that intent while effectuating its aims. They were also able to hide things the Founders said that they didn’t like.
Justice Scalia was crucial in this rebranding effort. But even in one of his most famous essays, Originalism: The Lesser Evil, Scalia used the words “intent” and “meaning” as if they were intertwined, if not interchangeable, just as Meese had done a few years earlier. (The word “understanding” often similarly appears among the other two.) Riding the rebranding wave, Bork changed his tune, pretending, like Rehnquist with respect to Brown v. Board, that he didn’t mean what he had previously so clearly said. By 1990, in his masterpiece The Tempting of America, he noted:
Though I have written of the understanding of the ratifiers of the Constitution, since they enacted it and made it law, that is actually a shorthand formulation, because what the ratifiers understood themselves to be enacting must be taken to be what the public of that time would have understood the words to mean. It is important to be clear about this. The search is not for a subjective intention.
He should have begged our pardon for the misunderstanding on our part.
Even taking Bork at his word, however, Bret Boyce persuasively outlines the problems with this subtle shift in the Originalist approach:
It is not immediately clear why the ratifiers’ understanding “must be taken to be” the understanding of the public as a whole. Furthermore, …if the understanding of the public as a whole is what counts, one must choose among various proposed definitions of “the public,” which have ranged from “the well-informed “ to ‘’voters” to “citizens, whether enfranchised or not” to “inhabitants of the United States.” Finally, if private understandings or intentions are evidence of public understandings, it is not clear why all this matters. Only in the relatively rare cases where the evidence supplied by a private understanding is refuted by specific evidence of a contrary public understanding will the public-understanding interpretation of a provision differ from the subjective-intention interpretation.
More important, if the search for subjective intent was riddled with séance-like speculation on the “one mind” of often-conflicting thinkers, Boyce observes that “any attempt to reconstruct the understandings of the public at large must entail far more speculation based on far less evidence than is even available for the understandings of the framers and ratifiers.” Thus, as a theory of constitutional interpretation, the New Originalism may in fact be worse than its long-forgotten forebear. For the same reason, it is better as a means to cloak political bias.
What really is the difference between seeking intention and seeking meaning? Doesn’t intent at least inform meaning? Recall Meese: “It has been and will continue to be the policy of this administration to press for a Jurisprudence of Original Intention. …[W]e will endeavor to resurrect the original meaning of constitutional provisions and statutes as the only reliable guide for judgment” (emphasis mine). I mean, did the Founders mean what they said and say what they meant, or not? Intent and meaning are intertwined in the very point of the common saying “say what you mean and mean what you say.” So not only is the distinction from intent to meaning miniscule; insofar as it is meaningful it is illogical to treat the two as mutually exclusive or as anything but intertwined, muddling things even further.
And that’s the point. The shift is really just a way of making things more vague and so easier to fill in with political bias, or with the “value choices” that are palatable to conservatives, by selectively quoting statements of the Founders’ intent as needed but otherwise not at all. When describing what he also refers to as Originalism’s “shift” from “intent” to “meaning,” the libertarian Originalist Barnett admits as much when he says the “different originalist methods are not always easy to distinguish. Evidence of framers’ intent or ratifiers’ understanding is also typically good evidence of original public meaning.” He goes on:
[Critics of Originalism] expect to see a richly detailed legislative history only to find references to dictionaries, common contemporary meanings, and logical inferences from the structure and general purposes of the text. That is the way the objective approach to contract interpretation proceeds, and that is how the new originalism based on original meaning proceeds as well.
The shift from “intent” to “meaning” left Originalism so open-ended that the Founders’ writings and notes were relevant only when convenient to further the agenda to limit rights — or whatever other agenda you had, as liberal Originalists soon joined in the fun. In shifting from “intent” to “meaning,” then, Originalism revealed itself as exactly what it claimed the problem was — political bias determining constitutional law.
In fact, so-called Liberal Originalists are the clearest proof that Originalism can be used to manipulate the historical record “to reach whatever result is thought to be desirable,” as Boyce puts it. In examining Originalists’ claims about the light shed on the Constitution by reading the Ordained Texts, liberals began to find quotations that supported liberal political causes and ideals, too. That is what led not only Justice Kagan but law professors before her to say “We’re all Originalists now.” While their doing so muddles things even further still, providing cover to those conservatives for whom Originalism is code for “Constitution = Conservative Agenda,” the question remains: If Liberal Originalists can come to conflicting and even opposite conclusions about the original intent or meaning, then what the hell is Originalism, after all?
The answer is not so much about what but about who. Who claims to be an Originalist tells you what that Originalist means by (or intends with) Originalism. For example, although Kavanaugh proclaimed he was an Originalist at his confirmation hearing, responding to Senator Mike Lee (R-UT) with “[y]es, original public meaning, as informed by precedent,” not everyone agrees he is. According to University of Chicago Law Professor Eric Posner, who examined Kavanaugh’s decisions on the D.C. Circuit Court, Kavanaugh is not an originalist. Yale Law Professor Akhil Reed Amar, an avowed, self-proclaimed liberal Originalist, disagrees — Kavanaugh is an Originalist and, according to Amar, that’s a good thing. Patricia J. Williams, of Columbia Law School, writing in the liberal commentary magazine The Nation, agrees that Kavanaugh is an Originalist — but, in her opinion, that’s a bad thing. And writing in The Federalist, Hillsdale College graduate and M.S. candidate at Loyola University Maryland, Noah Diekemper argues that Kavanaugh is an Originalist and attacks flawed liberal arguments that Kavanaugh’s Originalism is a pretext for racism and sexism. Well, that settles it.
What this confusion proves is that Originalism means different things to different Originalists. To Liberal Originalists, it means reading the Ordained Texts and finding justifications for liberal causes when convenient. To Conservative Originalists, it means reading the Ordained Texts and finding justifications for conservative causes when convenient. They only agree on the need to read the Ordained Texts, but of course differ between each other and amongst themselves on which texts are the Ordained Texts and the texts’ importance in light of other factors.
It is no coincidence that when liberals dug into the Ordained Texts and found ideas palatable to their political agenda, such as the Founders’ general acceptance and reverence for natural law philosophy, the Original Originalists began to look for new ways of achieving their rights-limiting agenda with the vestigial gloss of the Founders’ wisdom. Thus, to Kavanaugh and Senate Republicans — Conservative Originalists — Originalism is not simply the truism that reading what the Founders said can be insightful for constitutional interpretation. That would strip it of what really makes it valuable. No, to them Originalism is a code word for perpetuating the farce that the Founders, no matter what they actually said, would have generally agreed with the conservative agenda against everything from abortion to affirmative action to gay marriage — all that icky stuff wrought by the 60s and liberals ever since.
Those Pesky Rights!
But the Conservative Originalist’s insincerity about the sanctity of the text and history of the Constitution, and the magnitude of the threat this brand of Originalism poses, is visible only if you keep in view the Originalists’ desire to invalidate the Warren Court’s perceived expansion of the rights of historically disenfranchised groups — and then gaze upon the Ninth Amendment to the United States Constitution. It says: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people” (emphasis mine).
It’s hard not to conclude that the Ninth Amendment is pretty clear: Just because the Constitution, and the Bill of Rights in particular, lists or enumerates certain rights — like the right to free speech, to bear arms, and to due process — does not mean that “other” rights can be denied or disparaged (i.e., treated as inferior to enumerated rights). In other words, the rights mentioned in the Constitution are not a full or exhaustive list of all the rights the people have and the Constitution protects them all equally.
The Ninth Amendment is, essentially, the Framer’s way of saying “including but not limited to,” a common legal phrase in contracts used to expand, rather than limit, the document’s application to unmentioned possibilities. It is also the only provision of the Constitution that provides a rule of Constitutional interpretation (“shall not be construed”). So the Ninth Amendment says the people’s rights include, but are not limited to, the ones mentioned in the Constitution; there are so many you obviously couldn’t name them all; and they’re all equally worthy of the same vigorous protection — and the Constitution should be construed or interpreted accordingly.
What an acknowledgement of the magnitude and power of each individual’s liberty, and what a bulwark for its defense against government intrusion, restricting the powers of the government through the very force of the people’s almost boundless individual rights. Anyone calling oneself a champion of rights and a promoter of small or limited government must love the Ninth Amendment. But, for some reason, most Originalists (and conservatives more generally) appear to hate it — or at least pretend it’s meaningless. For example, at his confirmation hearing in 1987, Bork likened the Ninth Amendment to an ink blot right after the words, “Congress shall make no…” That is, its meaning had been lost and a court should not be able to simply make one up.
But not so for the Libertarian Originalist Barnett, an avowed New Originalist or, if I had my way, an Unoriginal Originalist, who marries his political libertarianism with Originalism and comes to the compelling yet obvious conclusion that the Ninth Amendment, perhaps more than any other series of words in American law, is as clear as it appears to be. It guarantees untold rights to the people.
Barnett challenges his Conservative Originalist allies, chastising them for not being who they claim they are — narrow constitutional interpreters bound to the text and the Framer’s intent. In taking an Originalist approach to the Ninth Amendment, Barnett finds ample evidence that the Amendment was intended to mean, publicly meant, and always should mean what I described above. It is the catchall rights clause.
Proof is easily found in the Ordained Texts, including the Declaration of Independence, particularly the Founders’ clear acceptance of, adherence to, and promulgation of the concept of “natural rights” — rights inherent in the state of nature, prior to people joining together into a government, rights you have with or without a constitution. And perhaps the best example of both the Founders’ and the public’s understanding of the breadth of the people’s natural rights that the Ninth Amendment enshrines comes from the heated debates between Federalists and Anti-Federalists about whether a bill of rights was even necessary.
The Federalists, in fact, argued that a bill of rights was not only unnecessary but also dangerous. Enumerating some rights, Federalists argued, might imply that the people’s rights were limited to only those enumerated, and a tyrannical government might justify all sorts of oppression on that negative implication. The most forceful expression of this position came from James Wilson, a Federalist delegate from Pennsylvania and future Supreme Court Justice, who scoffed at the idea of a bill of rights: “Enumerate all the rights of men! I am sure, sir, that no gentleman in the late Convention would have attempted such a thing.” Another Federalist and future Supreme Court Justice, James Iredell, made a similar argument: “Let any one make what collection or enumeration of rights he pleases, I will immediately mention twenty or thirty more rights not contained in it.”
But my favorite statement on the futility of enumerating all of the people’s natural rights comes from Theodore Sedgwick, a Federalist representative from Massachusetts, although he wasn’t referring to the Ninth Amendment but rather the draft of the First Amendment, and specifically whether the “right of assembly” should be included in it. Viewing the enumeration of the right to assembly as minutiae beneath the dignity of the Congress, Sedgwick acerbically remarked:
[I]f the committee were governed by that general principle, they might have gone into a very lengthy enumeration of rights; they might have declared that a man should have a right to wear his hat if he pleased; that he might get up when he pleased, and go to bed when he thought proper . . . .
James Madison, a Federalist but also a great political mediator, proposed the Ninth Amendment essentially to address Wilson’s, Iredell’s, Sedgwick’s, and the rest of his Federalist allies’ concerns, which were raised in opposition to anti-federalists’ demands for a bill of rights. In his speech on the floor of Congress introducing the Ninth Amendment (then the Eleventh Amendment), Madison stated:
It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration, and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the general government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that may be guarded against. I have attempted it, as gentlemen may see by turning to [the proposed text of what eventually became the Ninth Amendment].
What this history exposes is that Conservative Originalists will abandon their own methodology if it reaches a result inconsistent with their ultimate aim — to prevent any further extension of rights and return us to the status quo before the world-reversing Segregation Cases beginning in 1954.
If Barnett is correct, and he is not the only one, no one who disregards the Ninth Amendment really believes in what Originalism claims to be, and the entire school of thought began as merely a front organization for conservative politicization of the Supreme Court, with today’s Liberal Originalists unwittingly providing cover. If, through Originalist methods, it is shown that the Ninth Amendment enshrined countless unenumerated rights in the Constitution, including the right to wear one’s hat if one likes, let alone privacy; then, contrary to Bork’s Originalist Central Thesis, judges can and must sometimes impose values in balancing majority and minority rights, guided by natural rights philosophy, whose specific moral values must necessarily be updated to avoid letting mostly dead white men rule future generations from the grave. And the protections against this clearly enormous judicial power are enumerated in the Constitution — nomination by the president, confirmation by the Senate, and impeachment for cause.
Originalism in its original form thus shrinks from an overarching methodology to merely one of many tools used to interpret a living Constitution. No one disputes that you should see what the people who drafted and ratified any law said about it and try to use it as a starting point. All the hard work happens after that.
But that never was and still is not what Originalism purports to be — just another handy tool in the shed. Conservative Originalists still claim it is a sanctified judicial philosophy that just happens to promote conservative Republican causes. Bork and Barnett say Originalism as a theory has never been fully explained, and they happily admit they won’t try to fully explain it either. One certainty about Originalism, however, is that its proponents of any kind could never admit their philosophy permits, conceals, and perhaps even encourages political bias. No, no, no — that’s what the Warren Court did and that’s bad, even if the Warren Court fortuitously began the process of ending great injustices.
What is also clear is that most conservative politicians and judges who call themselves Originalists are Conservative Originalists. And, unsurprisingly, they tend to view the legacy of the Warren Court with suspicion because, just as unsurprisingly, they tend to view the Constitution’s grant of people’s rights as limited to the words in the Constitution — except, of course, for the clear words of the Ninth Amendment preserving countless unenumerated rights. And, thus, they tend to limit people’s rights, especially those people in historically disenfranchised groups, whether or not they intend (or mean) to.
In full view, then, Originalism masquerades as a mechanism of judicial restraint while stealthily serving as a potent political tool, fabricating and then citing as evidence its own national mythology. Originalism is thus circular gibberish parading as patriotic intellectualism to disguise the implementation of partisan conservative policies.
Worse, arguments in favor of Originalism are the descendants of racist arguments in favor of racial discrimination and against extending “unalienable” natural rights to blacks, women, and other disenfranchised persons, including unenumerated rights protected by the Ninth Amendment. And even if its racist original intent is gone, the fallacies and danger of the logic remain. Originalism is thus a threat to liberty itself.
As a result, in practice Originalist judges do exactly what they accuse non-originalist judges of doing: making shit up to effect preferred political goals. They get away with it exactly because they accuse others of that sin first — a most devious projection of your own sins onto others.
Once the Originalists had selectively quoted enough history, ignoring contradictions and the Founders’ changes of mind and denying or disparaging the Ninth Amendment along the way, all to cement the false notion that the Founders practically were the modern Republican party — once this notion was cemented, it didn’t matter anymore. Call yourself an Originalist and, if your politics is conservative, you channel the Founders’ wisdom. Your constitutional interpretation is sacred. And that generally means fewer rights, especially for historically disenfranchised groups. Because that’s all that was and still remains of Originalism as an overarching theory of constitutional interpretation — anti-rights intentions wrapped in racist reasoning.
The Next Originalist
So when Judge Kavanaugh says he’s an Originalist, he’s saying he’s another fraudster, another political hack bent on denying rights protected by the Constitution and hiding behind a veneer of judicial restraint and national mythology. In fact, Kavanaugh is the poster boy for Originalism’s hypocrisy: claiming judicial restraint and neutrality while ensuring hyper-partisan conservatives remake America into what it was before 1954.
Thus, when we talk about Judge Kavanaugh’s nomination to the Supreme Court, let’s stress that not only should Kavanaugh not be confirmed because
there are credible allegations of sexual assault against him, which deserve but did not receive a thorough FBI investigation;
or that he likely committed perjury, for which he should be impeached, disbarred, arrested, and tried;
or that he’s a partisan hack whose record has been purposely withheld, and which must be released;
or that he may owe money to unknown people who paid off his huge debts, which also deserves an FBI investigation;
but also because his entire judicial philosophy — Originalism — is a sham and a danger to liberty.
We deserve better than another Originalist on the Supreme Court — better than not just Kavanaugh, but even one of otherwise impeccable moral fiber.