Kavanaugh And The Myth Of Strict Construction

Kavanaugh And The Myth Of Strict Construction

Reprinted with permission from Creators.


When Donald Trump announced his nominee for the Supreme Court on Monday, he said he wanted someone who could set aside his political views “to do what the law and the Constitution require.” Brett Kavanaugh followed by saying a judge “must interpret the law, not make the law.”

It’s a classic conservative approach. You read the law and the Constitution, and then you follow them to the letter. Call it strict construction, judicial restraint or originalism. It’s as easy as following the directions on a Duncan Hines cake mix.

Except it’s not. Even the most carefully drafted laws — unlike, say, the 2017 tax reform bill, which was 500 pages long and passed in haste — have provisions that are complicated, imprecise or untested. The courts have to assign meaning to passages that even Congress didn’t fully understand.

The Constitution is even murkier. It does, of course, include some language that is blindingly clear. When it says the president must be at least 35 years old or that the Senate consists of two members from each state, there is no room for misunderstanding.

But other phrases are so lacking in specificity that they practically invite the reader to determine the meaning — sort of like a Rorschach test. Among them are such crucial terms as “freedom of the press,” “unreasonable searches and seizures,” and “equal protection of the laws.”

Robert Bork, whose Supreme Court nomination was voted down in 1987, found the Ninth Amendment — which protects certain rights that it does not identify — so baffling that he compared it to an inkblot.

Saying you will apply the laws and Constitution as written is like saying you will always do the right thing. It reveals nothing about what the actual results will be.

The conservative claim to adhere to the language of the Constitution is not nearly so strict or faithful as it purports to be. We know that because conservatives often oppose certain Supreme Court interpretations before they happen and when they are issued, only to go along with them later.

They demand that the decision in Roe v. Wade be overturned because it lacked a constitutional basis — but they don’t make the same demand about the 2003 decision protecting sodomy or the 1965 ruling that said states may not outlaw contraceptives.

The 14th Amendment was meant to protect blacks from discrimination. But the Supreme Court has also interpreted it to prohibit discrimination against women — never mind that women weren’t allowed to vote at the time it was ratified.

Even conservative hero Antonin Scalia agreed with the court on that. Neither Brett Kavanaugh nor Neil Gorsuch is about to vote to roll back the decisions that advanced sexual equality over the past four decades. (Clarence Thomas? Maybe.)

Scalia, in step with other conservatives, ridiculed the notion of a “living Constitution” whose meaning evolves over time to accommodate a changing world. He preferred “the good old dead Constitution.” If the Framers didn’t intend to forbid something in the Constitution, his disciples insist, it isn’t forbidden.

But they don’t really mean it. “There is no conceivable originalist case for women’s equality, unless originalism is going to lose all meaning and all capacity to limit courts,” University of Chicago law professor David Strauss, author of “The Living Constitution,” told me. “The idea that there was a constitutional right to interracial marriage was crazy radicalism at the time of the 14th Amendment.”

Yet even the most conservative justices are content to leave these decisions in place. That choice can be justified on the theory that a justice should abide by the court’s past decisions, even if he or she thinks the decision was wrong.

But if respect for precedent is obligatory, then the 1973 decision legalizing abortion has to stand. Most conservatives very much want it to fall. And if precedents are sacred, why did the five conservative justices just vote to discard an important 1977 verdict that benefited public employee unions?

When it comes to interpreting and applying the Constitution, there are few simple answers. It requires a variety of methods: deducing what the Framers intended, discerning the underlying principles, adapting them to situations that could never have been imagined by the authors, taking account of modern standards of what is acceptable, considering previous Supreme Court rulings, using common sense and more.

Even conservative justices have to work this way — and so will Kavanaugh. “Everyone’s a living constitutionalist,” says Strauss. “It’s just a question whether they admit it.”

Steve Chapman blogs at http://www.chicagotribune.com/news/opinion/chapman. Follow him on Twitter @SteveChapman13 or at https://www.facebook.com/stevechapman13. To find out more about Steve Chapman and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate website at www.creators.com.


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