It’s not just about assault or drinking

LETTERS TO THE EDITOR

As the FBI conducts its investigations into the sexual assault allegations against Supreme Court nominee Brett Kavanaugh, just about everyone has been distracted from questions about his legal philosophy. But let’s not forget, as Justice Neil 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