Supreme Court nominee Judge Brett Kavanaugh at his Senate Judiciary Committee confirmation hearing on Capitol Hill, September 4, 2018. (Jim Bourg/Reuters)

Some answers to constitutional questions worth considering.

George Will has devoted three columns (one, two, three) to listing more-useful questions for the senators to ask Judge Kavanaugh than their staffs are likely to come up with. Here I’ll supply the answers I’d give if I were the nominee and a senator asked me some of Will’s questions.


Senator Will: “Would you dismiss, as Robert Bork did, the Ninth Amendment (‘The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people’) as an ‘inkblot’?”

I would not dismiss it as an inkblot, and neither did Judge Bork.

Senator Will: “If judges should secure only enumerated rights, does that mean Americans had no rights against the federal government before the Bill of Rights was adopted in 1791?”

No, Senator, that conclusion would not follow, although modern judicial-supremacist mental habits make it appear to follow. Americans would still have rights that they could secure through political, including legislative, action outside the courts. They would also have unenumerated rights that the courts could help to secure indirectly. For example, if Congress tried to grant the federal courts powers beyond those the Constitution allows it to give them, the courts would be obliged to decline to exercise those powers — which could protect unenumerated rights.


Senator Will: “In 2004, the Tenth U.S. Circuit Court of Appeals upheld an Oklahoma law — protectionism for funeral directors — requiring online casket retailers to have funeral licenses, which require several years of coursework, a one-year apprenticeship, embalming 25 bodies, and taking two exams. The court complacently said: ‘While baseball may be the national pastime of the citizenry, dishing out special economic benefits to certain in-state industries remains the favored pastime of state and local governments.’ Does judicial tolerance of such enrichment of small factions constitute dereliction of the duty to protect the basic right to strive for betterment?”


Only if there is such a duty, and there is such a judicially vindicable right, which the Constitution does not appear to provide.

Senator Will: “When the 14th Amendment was ratified, 32 of the 37 states had laws criminalizing sodomy. Can originalists defend the Court’s 2003 ruling that such laws violate this amendment’s ‘due process’ guarantee?”


No, Senator, they cannot. Ask me something tougher.


Senator Will: “The Eighth Amendment proscribes ‘cruel and unusual’ punishments. But punishments contemporaneous with the ratification of this amendment included branding, pillorying, whipping, and mutilation. Would originalism allow these?”

Not necessarily. Depending on the results of a historical inquiry into the meaning of the term “cruel and unusual,” the amendment could impose severe limits on the use of such punishment. Of course, it would not make a great deal of difference either way, since the good sense of the public and the political structures that the Constitution erects impose limits on punishment beyond those explicitly mentioned in the Constitution.

Senator Will: “Do you agree (as the Goldwater Institute’s Timothy Sandefur argues) that the Declaration is logically as well as chronologically prior to the Constitution: The Declaration ‘sets the framework for reading’ the Constitution as a charter for government ‘instituted’ to ‘secure’ pre-existing rights?”

Yes, although I would note that this fact by itself does not establish the precise role the courts should play in securing those rights.


Senator Will: “Can you cite an important constitutional provision (certainly not the regulation of interstate commerce, or the establishment of religion, or government taking private property for ‘public use,’ or the prohibition of ‘cruel and unusual punishments’) the meaning of which today is the same as the public meaning when the provision was ratified?”

I certainly consider the fact that all members of the House are elected every two years important.

Senator Will: “Sandefur argues that the Fifth and 14th amendments’ guarantees of ‘due process of law’ are not purely about process. Rather, the adjective ‘due’ modifies the noun ‘process’ by giving it the following substance: Due process produces an outcome that is not arbitrary as measured by criteria inherent in the concept of law — generality, fairness, and rationality understood as a cost-efficient means to a legitimate government end.”

I take it you are implicitly asking me whether I agree or disagree. The answer is both, to some degree. The best account I have read of the historical understanding of “due process” suggests that it requires that laws have certain characteristics such as generality and prospectivity. It does not, however, require judicial second-guessing of whether a law is cost-efficient or the end it seeks is legitimate.

Many thanks for your stimulating questions.