By Andrew L. Seidel
Director of Strategic Response
Freedom From Religion Foundation
Brett Kavanaugh is an originalist in the mold of Antonin Scalia or Clarence Thomas. Originalism is one of the main reasons the Federalist Society approved him for its shortlist of judges and why the National Review endorsed him: he has “repeatedly taken conservative stands and fearlessly defended his textualist and originalist philosophy.”
But what does it mean to be an originalist? Despite its name, originalism is a fairly new judicial philosophy, rising to prominence about 30 years ago. It has plenty of critics, and for good reason, but rarely does an originalist judge demonstrate the hypocrisy of originalism as completely as Brett Kavanaugh did in a 2010 opinion involving atheists suing Chief Justice John Roberts over presidential inaugurations. To understand how hypocritical that opinion was, we first have to understand what it means to be an originalist.
What does it mean that Kavanaugh claims to be an originalist?
Originalist judges claim they are just sticking to the dry text of the Constitution, which doesn’t change except through a stringent amendment process. They claim to define the words in that text as the framers of the Constitution would have defined them at the time. In their mind, judges who don’t follow this philosophy are activists, legislating from the bench and harming our constitutional system.
Critics argue that originalists use this philosophy only when the outcome suits their conservative agenda and that originalists are no different than other judges; they just claim to be walking the high road. Indeed, originalism has a holier-than-thou flavor to it. It suggests that these judges only look at the Constitution while other judges inject their personal preferences into cases. Originalists are purists, everyone else is overstepping.
There are clear parallels between originalism and conservative Christianity, including purity, textualism, and sanctimony. Perhaps not coincidentally, many originalist judges are highly and conservatively religious. Scalia believed in a literal devil, Thomas is a devout and conservative Catholic, as are Roberts and Alito. Gorsuch is probably a conservative Episcopalian, a close relation to the Catholic Church. The selective reverence for text above common sense, and in some cases common decency, is perhaps the strongest parallel. But so is the element of heresy. Originalist judges tend to treat other judges like jurisprudential heretics.
Scalia is the original originalist. He infamously declared, “My Constitution is . . . dead.” “It’s dead, dead, dead,” he said on another occasion. It’s meaning cannot change. And, in his mind, this would lead to conclusions that might seem ludicrous but are nonetheless required: “Whatever [the framers of the Constitution] understood then is, in my view, the meaning . . . and it’s not up to me to say it really shouldn’t mean that any more.”
In an interview with NPR, Scalia illustrated the point using the Eighth Amendment’s prohibition on “cruel and unusual punishment.” For Scalia, the punishment must have been considered both unusual and cruel in 1789, when the Constitution was framed. If, at the founding, a punishment was cruel but usual or tame but rare, it’s permissible today. So, if putting people in stocks and notching the ears of the condemned was common at the time, it’s “not unconstitutional” today.
Kavanaugh is very like Scalia — and he tries to be. His comments at the nomination ceremony were meant to showcase his originalism. He declared that he would “interpret the Constitution as written, informed by history and tradition and precedent.” That “and precedent” was an add on for the larger audience. When he delivered a similar line at Notre Dame law school in June 2016, essentially an audition to the Federalist Society for the Supreme Court and an ode to Scalia, he instead explained that judges should “[r]ead the text of the Constitution as written, mindful of history and tradition.” “Precedent” was ominously absent.
Text and tradition is a fair summary of Kavanaugh’s originalism. The Constitution as written first, Kavanaugh says, meaning the text. Textualism is foremost to originalists and it’s the reason originalists love to cite dictionaries from the founding: the words matter most. Secondary to the text are history and tradition, so we can be sure of the meaning of the words when they were written.
Criticisms of Originalism
Originalism has a lot of problems and no doubt astute readers with modern views on slavery, segregation, reproductive rights, and women’s rights have spotted some already.
The Constitution is concise and often precise, but it is also deliberately and unavoidably vague. Delegates to the Constitutional Convention could often not agree on specifics and were forced to adopt broad strokes to reach compromises, trusting that posterity would fill in the gaps. (Other details, such as the odious three-fifths compromise, were explicit and the result of negotiation). The Constitution provides general structure, often at the expense of detail, which is what we’d expect from a document that contains less than 5,000 words as first drafted and still has less than 8,000 as amended.
In James Madison’s notes of the Constitutional Convention, which remained secret until 1840, there are examples of this ambiguity. For instance, Massachusetts delegate Rufus King asked, “what was the precise meaning of direct taxation?,” a phrase now in Article 1 Section 2, and “No one answered.” They didn’t know.
The Federalist Papers — the essays written to explain the Constitution and convince the people of the various states, New York in particular, to ratify it — also contradict originalism. Madison spends a good deal of the Federalist #37 pointing out that all laws are at least somewhat vague because they use words to express ideas, rendering them “obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications.” Adjudicators — judges — are supposed to put meat on the constitutional bones. Madison pinpoints three sources of “vague and incorrect” laws and their definitions, “indistinctness of the object, imperfection of the organ of perception, inadequateness of the vehicle of ideas,” and notes that the Constitutional Convention, at least in some areas, “must have experienced the full effect of them all.”
Alexander Hamilton’s words from Federalist 78 also show that the framers themselves did not intend for their words to control all the time. It was up to our independent judiciary “to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.”
Originalism’s flaws are evident in the disagreements from the founding era. Madison and Hamilton, both signers of the Constitution and authors of the Federalist Papers, got into a nasty debate about the meaning and extent of the “necessary and proper” clause and whether or not it authorized chartering a central bank.
The Supreme Court, in 1819, read that clause expansively and permitted the bank, with Chief Justice John Marshall delivering one of the more famous lines in Supreme Court literature: “[W]e must never forget, that it is a Constitution we are expounding.” And indeed, originalism also runs into problems when looking at the rest of the precedent from the Supreme Court’s first 30 or 40 years, those years when the framers of the Constitution were alive and, in some cases, sitting on the high court (Justices Wilson, Rutledge, Blair and Paterson). If the Founders themselves could not agree on the meaning of constitutional text, it belies the idea that modern judges, writing 200 years later, could objectively interpret the same text’s original meaning without any influence from their personal ideology.
A full analysis of the living Constitution versus dead Constitution debate is beyond this article, though it is hashed out in many law reviews, books, and competing judicial opinions. For our purposes, it’s enough to know that these are all good reasons to suspect that Kavanaugh’s originalism may be more narrative and advertising and less a cold rubric for deciding cases.
Kavanaugh exposes Originalism
If originalism is not intellectually bankrupt as some have argued, there ought to be some cases, like the stocks and notched ears hypothetical, that would go against the expected outcome because of the text in the Constitution. And we’d expect to see such cases when the language of the Constitution is at its most clear and definite.
Before he enter on the Execution of his Office, [the President] shall take the following Oath or Affirmation:— “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”
And yes, that’s where the oath ends according to the Constitution. The words “so help me God,” which modern presidents routinely add at the end of the oath, do not appear in the Constitution. In fact, the U.S. Constitution is entirely godless.
This language is perfectly clear. Unlike much of the Constitution — “cruel and unusual,” “necessary and proper,” “well-regulated militia,” “unreasonable” searches and seizures — there is no room for interpretation or modifications in the presidential oath. The quotation marks remove all doubt.
This means that, in the very process of asking a new president to “preserve” the Constitution, the chief justice is also amending the terms of the oath by adding four words while administering the oath, and is doing so without going through the constitutional amendment procedure laid out in Article 5.
This also means that in any case involving the oath, the originalist can end his inquiry. There’s no need to move on and see how the text is “informed by history and tradition” because the text is perfectly, absolutely clear. It is perhaps the clearest statement in the document: “Say this.”
While Kavanaugh was on the D.C. Circuit Court of Appeals, just such a case came before him and he showed the hypocrisy of originalism.
The challenge to “so help me God.”
The lawsuit, filed 22 days before President Obama’s first inauguration, challenged its religious aspects: government–organized prayers and the Chief Justice adding “so help me God” to the oath. (Inaugural prayers were also challenged, but the text of the Constitution does not mention or allow government-sponsored prayers — though it is godless, separates state and church, and, as Hamilton put it, gives the president “no particle of spiritual jurisdiction” — so we’ll focus on the second question, the words of the presidential oath.)
Plaintiffs, individuals and secular organizations, argued that any edits or additions to the oath by the chief justice would violate the clear constitutional command, and any edits that promoted religion over non-religion would also violate the separation of state and church embodied in the Constitution and First Amendment.
Mike Newdow, the lead plaintiff and lead attorney, had filed similar challenges in 2001 and 2005. At every step in each of these cases, every judge dismissed the case on procedural grounds. The D.C. Circuit Court of Appeals did the same. Three judges, including Kavanaugh, sat on the panel.
But Kavanaugh wasn’t content to dismiss the case because it was moot, so he wrote a separate opinion. He does this often, more so than any of the other nominees on Trump’s shortlist. He’s regularly written dissents to en banc opinions, any one of which would be remarkable, and consistently appears in the losing minority of 8-3, 9-2, cases. When combined with his Judicial Commons Score, it indicates how extreme a nominee he truly is, nowhere near the mainstream of judicial thought.
Kavanaugh wrote separately to explain that he would have allowed the case to move forward procedurally and then decided against the plaintiffs on the merits. That is, Kavanaugh wanted the court to hold that there was nothing wrong with adding a religious supplication to the text of the presidential oath.
There are several remarkable things about his opinion, all which serve to expose his originalism as mere window dressing for a conservative ideology. First, unlike every other judge to hear the cases over nearly a decade, Kavanaugh went out of his way to decide the case on the merits. The barely concealed bit-champing is suggestive, and when reading his opinion it’s hard not to think that he wanted to decide the merits in favor of religious endorsements and was willing to ignore procedure to do so.
Second, Kavanaugh completely ignored the clear text of the Constitution, a cardinal sin if one’s originalism is genuine. Text is paramount. Judicial inquiries must begin there. Kavanaugh never mentions Article 2 or what the presidential oath actually says. He does quote the First Amendment, which plaintiffs argued was violated, but then goes right into his “history and tradition” analysis, writing that the “use of ‘so help me God’ in oaths for government officials is deeply rooted in the Nation’s history and tradition. By many accounts, George Washington said ‘so help me God’ when he took the first Presidential oath in New York on April 30, 1789.
Third, Kavanaugh got this history wrong. George Washington did not add “so help me God” to the presidential oath. Not one contemporaneous account of his inauguration includes the addition, which would surely have been remarkable given that the words did not appear in the Constitution, the drafting of which Washington had presided over for several months. The stories about Washington editing the oath originated nearly 70 years after the event with Washington Irving, the father of much American folklore, including “Rip Van Winkle” and “The Legend of Sleepy Hollow.”
Kavanaugh wrote that adding the words to the presidential oath was a custom that was “deeply rooted in the nation’s history and tradition,” but the phrase has only been in regular use since World War I.
Fourth, it appears that Kavanaugh knew the history was bad. Reading his opinion carefully, he actually argues that other people said Washington use the words “so help me God,” but not that Washington actually did. Kavanaugh wrote, “By many accounts, George Washington said ‘so help me God’ . . .” By many accounts, but none of them are contemporaneous and all are refuted by contemporaneous accounts. And in fact, this was central to the plaintiffs’ challenge and pointed out in the complaint.
This is another flaw with originalism: it relies heavily on history and tradition, which are malleable enough to support most positions if one is willing to omit some facts and emphasize others. For instance, Kavanaugh’s opinion makes much of the words “so help me God” in the federal oaths Congress prescribed for judges, but fails to note that the very first law Congress passed included oaths for members of that body, and that “so help me God” was excluded.
So, in a challenge to what amounts to amending the clear words of the Constitution without authorization, a challenge about the clear text, Kavanaugh the Originalist ignored that text, got his history wrong, and seems to have manipulated history and tradition to reach the conclusion he preferred.
If originalism was more than a marketing strategy, conservative judges like Roberts wouldn’t add words to the clear presidential oath laid out in the Constitution and Kavanaugh would not have defended the practice. If the dead letter of the Constitution mattered above all else, they would have made a hard decision that would inevitably have disappointed conservatives. Instead, they went out of their way to bend history and ignore the text.
Of course, there is merit in understanding what the founders meant when they framed the Constitution. And our history and tradition can be important to that understanding. But originalist judges seem to have adopted that moniker as a way to imbue their decisions with extra authority, not as a way to reach those decisions.
Originalism is not a judicial philosophy, it’s Newspeak’s antipodean name for judicial activism. It’s little more than branding for conservative judicial activism.
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