George Thomas is Wohlford Professor of American Political Institutions at Claremont McKenna College. He is author of “The Founders and the Idea of a National University” and co-author of “American Constitutional Law: Essays, Cases and Comparative Notes.”
As the FBI conducts its investigations into the sexual assault allegations against Supreme Court nominee Brett M. Kavanaugh, just about everyone has been distracted from questions about his legal philosophy. But let’s not forget, as Justice Neil M. Gorsuch put it in somewhat different circumstances, to talk about the arcane matter of the Constitution. There are unanswered questions here, too.
Kavanaugh insists that one factor “matters above all in constitutional interpretation”: understanding the “precise wording of the constitutional text.” During his confirmation hearings, he frequently turned to his well-thumbed pocket Constitution to highlight this point.
Yet text does not always speak for itself. How we interpret constitutional text depends on our larger understanding of what kind of government the Constitution brought into being, as well as our understanding of more specific concepts such as “the executive power” or “equal protection of the laws.” Here text is helpful, but only suggestive.
Many ardent defenders of textualism fail to acknowledge this. They insist that we are either textualists following original meaning or are simply making things up. But aside from clauses such as the mandate that the president be 35 years of age, almost all constitutional interpretation rests on unwritten understandings. Failing to acknowledge this, as many textualists do, distorts constitutional text.
Consider the late Justice Antonin Scalia, who insisted we must interpret constitutional text based on the original understanding of those who ratified it. But why? Scalia’s answer did not rest on constitutional text. Instead, he argued, the “main danger in judicial interpretation of the Constitution — or, for that matter, in judicial interpretation of any law — is that the judges will mistake their own predilections for the law.”
Scalia considered originalism — what he called “the lesser evil” — the best method of interpretation because it mitigates judicial “lawmaking” by establishing “a historical criterion that is conceptually quite separate from the preferences of the judge himself.” Scalia defended original meaning first and foremost because it limits judicial discretion, not because it faithfully captures the Constitution.
Scalia worried that if we do not bind judges to original meaning they will render decisions based on their own moral and political inclinations. It’s a powerful argument. But it’s an argument that depends on Scalia’s preconceptions of the judiciary and its role in a democracy; it is not derived from constitutional text. Indeed, Scalia was occasionally dismissive of constitutional text when it potentially invited judicial discretion.
In a 2010 case, McDonald v. Chicago, Scalia dismissed an attorney’s effort to return to the original meaning of the “privileges or immunities clause” of the 14th Amendment. The clause commands: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” Scalia worried that returning to the original meaning meant overturning 100 plus years of precedent. He also worried that such open-ended constitutional text — just what are the “privileges or immunities of citizens of the United States”? — was an invitation for judges to “create” rights. So constitutional text was subordinated to Scalia’s fear of judicial lawmaking.
Kavanaugh has praised Scalia’s strict adherence to the text of the Constitution. But what about a text that seeks to protect “the privileges or immunities” of citizenship even if it does not specify what those are? Scalia sought to confine rights to those enumerated in the Bill of Rights, such as freedom of speech and religion. Yet this neglects what Kavanaugh insists on: “the precise text of the Constitution.” If the drafters had wanted the privileges or immunities clause to refer only to rights textually enumerated elsewhere, they could easily have done so. But that is not the language used. Does the Constitution invite the protection of unenumerated rights?
Questions of this sort are inescapable. The 14th Amendment commands that no state deny a person the “equal protection of the laws.” Does a prohibition of same-sex marriage deny equal protection of the laws? Scalia insisted that it didn’t. But does text make this clear? Should we be bound by the original understanding of those who ratified the text in 1868 when no one had given any thought to same-sex marriage? Or should we be bound by the principle set in motion in 1868 that prohibited creating different “castes” among citizens? In 1967, when the Supreme Court ruled in Loving v. Virginia that prohibitions on interracial marriage violated the equal protection clause, was it following narrow original meaning or was it following a more general principle? Is same-sex marriage akin to interracial marriage or different under the Constitution?
Kavanaugh should have been asked such questions at his confirmation hearings. In more than a decade on the bench, he should have answers. But they won’t come from his pocket Constitution. These questions depend on unwritten understandings of the whole Constitution. This does not deny the importance of constitutional text, nor does it mean judges are free to make things up. It means we should be explicit about our unwritten understandings that give meaning to constitutional text.