Kavanaugh and the welcome death of the ‘living constitution’

For progressives, Brett Kavanaugh’s true alleged sin is not sexual assault. Rather, were they sincere, his crime is actually much much more horrible: Kavanaugh is a lawyer who believes and upholds the textualist and originalist schools of constitutional interpretation.

In the Philippines, those terms may not be well known, at least when compared to their more fashionable foil, the “living constitution” theory, of which many of the Metro’s “prestigious” law schools adhere to.

Considering our constitutional system, this column (as well as the University of Asia and the Pacific’s law program) has vigorously sought to inform the Filipino public about originalism and textualism. Actually, re-recognize.

For originalism/textualism was the norm, the “living constitution” being a mere 20th century creation by progressives to ram through their preferred policy agendas.

The difference, by the way, between textualism and originalism, although arguably in the same camp, is that the former seeks to understand the constitution through the ordinary meaning of the words, with the originalist arguing that “ordinary” meaning should be that at the time a constitution was enacted.

Progressives tend to adhere to the “living constitution” for tactical reasons: what they cannot push democratically in the legislature they can do so surreptitiously in the judiciary, unhampered by what actually a constitution says, as the words therein (they argue) should be interpreted as the times require.

Thus, for social issues like entitlement welfare, gay marriage, divorce, sexual orientation/ gender identity (SOGI) “rights,” abortion, contraceptives — all of which are not mentioned either in the US or Philippine constitutions (except for the latter, which prohibits abortions), a democratically elected legislature has the discretion to reject such meas-

ures. Generally for the US Congress and definitely in the case of the Philippines (so far) that has been true. In which case, progressives then try to get around such by resorting to the courts.

But they can only do so if two things occur: a) the judges must vociferously adhere to “judicial activism,” and b) for that to happen, the “living constitution” theory must prevail.

Frankly, the confirmation of judges (and justices) should not be a matter of political spectacle. It’s a cut and dried matter, a selection of craftsmen. The judiciary, after all, does not make policy. They are only supposed to apply the law.

But because of the “living constitution” theory, gleefully taught here by activist law faculty and social justice lawyers, the judiciary has been transformed into a major political player, making the ideological leanings of the judge (or justice) to be relevant when it shouldn’t be.

Witness Kavanaugh’s confirmation: “The reason for these increasingly hard-fought and closely decided Supreme Court battles is that the last four nominees have been originalists and textualists who threaten the progressive doctrine of the Living Constitution. xxx Any restoration of constitutionalism and of the separation of powers depends on control of the Court.” (Check out Matthew Continetti, “The judicial wars are just getting started”; Free Beacon, October 2018.)

The weird thing is that (see for example Eric Posner’s analysis of Kavanaugh’s legal writings), there is really no evidence Kavanaugh is an originalist of the Scalia brand. Textualist, likely.

Progressives tend to adhere to the “living constitution” for tactical reasons: what they cannot push democratically in the legislature they can do so surreptitiously in the judiciary, unhampered by what actually a constitution says, as the words therein (they argue) should be interpreted as the times require.

The other is that people equate originalism with conservatism, which is not necessarily accurate. Originalism is simply the honest read of a constitution as written. What is controlling is what the people actually wrote in the Constitution.

Many local pro-lifers enthusiastically cheered Kavanaugh believing he is an originalist and thus will automatically uphold pro-life advocacies. Which is not true. Were Kavanaugh truly an originalist, he will apply the US Constitution as written regardless of what the pro-lifers want.

In the case of the Philippines, for example, a textualist/originalist reading of the Philippine Constitution may very well likely support rulings in favor of:

Marcos’s burial in the Libingan ng mga Bayani;

Martial law in Mindanao; Quo warranto as a proper mode of removal of a Supreme Court justice; and

Assertion of Philippine sovereignty over international organizations (e.g., the UN or ICC).

Gratifyingly, the textualist/ originalist thought in constitutional interpretation has gathered force. The Philippine Judicial Academy recently witnessed a lecture by Dean Pacifico Agabin (Taking Text and Structure Seriously: Two Approaches To Constitutional Interpretation), where he stated that:

“It is submitted that the textual method should be the preferred approach to interpreting the Constitution aside from the fact that we are essentially a civil law country. Since our Constitution is only 31 years old, our Supreme Court has to abide by originalism, which specifies textualism and helps our Justices arrive at definite interpretations of the text even when it is ambiguous.”

This bodes well, not only for the legal profession but also for the Philippines. To paraphrase another great legal mind, Justice Florentino Feliciano, what we do not want is to “propel courts into the uncharted ocean of social and economic policy making.”

For that way lies judicial oligarchy, a violation of the separation of powers that our Constitution zealously protects.