Kavanaugh & Originalism

Hearing reveals true face of oppressive legal philosophy

Brett Kavanaugh begins to lose his self-control at the Senate Judiciary Committee hearing on September 27th.

Kavanaugh testified for days that he is a committed originalist, a jurist who decides the law without any political bias. It is impossible to reconcile that testimony with his deeply partisan behaviour in Thursday’s hearing.

Humans make decisions based not only on reason, but on a plethora of factors, including biopsychosocial factors, moral values, political values, self-interest, prejudice, fear, conditioning, education, socio-economic status etc. etc. These factors, which are the result of our birth, upbringing, and education, as well as individuality, interact impulsively, are then felt emotionally, and are finally solidified in reason, thus creating our worldview. The existence of a worldview implies the will for preferred outcomes, and our preferred outcomes are then subject to rationalisation. After all is said and done, we eventually forget that our philosophies were not the result of rational consideration from the first instance, but rather were merely shaped, refined, and reinforced by reason.

The worldview of the privileged white male is that nothing needs to change too much, because the status quo enriches and empowers the privileged white male. What reasoning could support this outcome? Arguably an originalist reading of the Constitution.

The Constitution is not even close to being a perfect document. For starters, it defined blacks as three-fifths of a human, and assumed women should not be represented, nor representatives. There are other limitations to a Constitution, such as the simple fact that abortion did not exist at the time it was written; how could the Constitution protect women’s rights in language that had yet to be coined? No doubt there are many rights we cannot yet conceive of that will one day need to be Constitutionally protected.

Human morality is a process of discovery and debate. We have come someways in the last few centuries, but we have many more centuries to go before we delineate the fuller penumbra of ethics. Individual issues undergo a slow processes of moralisation, like smoking, as the body of semantic knowledge increases, which in turn furthers human understanding. This is why the arc towards justice is long and of a shallow bend.

It is beyond debate that the purpose of our Constitution is to protect individual liberty and the good. It is also beyond debate that the law has an inherent subjectivity; how else could separate but equal mean justice one year, and injustice the next?

Within this range of subjectivity, we have originalists pulling us towards older, conservative interpretations, and progressives reaching forward to newer, more contemporary ones. This is a fact of the law. It is also a fact that the law advances in only one direction: towards justice, which, when looked at through the lens of human history over the centuries, is exclusively towards progressivism, never conservatism.

Conservative originalists maintain that judges should not be ‘activists,’ meaning that they should stick to precedent. But precedent is not the exclusive domain of conservatives. Progressives also use precedent to substantiate and further the law. Constrained by the range of subjectivity within law, both originalism and activism seek to use precedent to advance their preferred outcomes.

One distinction originalists fail to make, is that precedent takes on a different, lighter weight at the Supreme Court level. It is of course necessary for lower judges to follow the Supreme Court’s rulings and legislative intent, in which case, strict adherence to the letter of the law is necessary. However, there is no Constitutional limit on Supreme Court activism. No one disputes that the law is whatever the majority of the nine justices agree. There are zero checks in the Constitution to prevent a Supreme Court Justice from overturning precedent, or from writing law as their conscience dictates. It is convention, not Constitutional mandate, that requires a Supreme Court Justice follow precedent.

The convention of precedent is often broken when the Court realises it has made a mistake, or when moralisation leads to a new understanding of an issue that makes clear what is just and what is not. But mere convention does not stop the Court from overturning precedent for political reasons.

So where are the lines, within an individual’s conscience and worldview, between one’s moral values, political values, religious beliefs, and material interests? It is naive to think clear boundaries exist. The different factors that constitute our will and motivation, and which determine our worldview, create a rational framework to justify preferred outcomes.

Originalists argue that the separation of powers doctrine suggests that it is the responsibility of Congress or state legislatures to write the law on abortion, since the term is not found in the text of the Constitution. After all, it is the job of the judiciary to say what the law means, not to write the words themselves. Although this may seem like a rational framework, there are other considerations, equally reasonable, which lead to a different conclusion.

Consider that, within the separation of powers doctrine, there exist overlapping powers between the different branches of government. The executive has legitimate quasi-legislative powers in the areas of foreign policy and national security. The legislative has quasi-executive powers in providing for the defence of the nation and declaring War. The executive also has quasi-judicial powers in that there is subjectivity within the enforcement of laws. When the executive choses not to enforce a law but enforces others, it effectively says what the law is, whether it exists or not, since without enforcement there is effectively no law. The legislative also possesses quasi-judicial powers because it can change the Constitution, potentially reversing Supreme Court precedent. It is only to be expected, then, that the judiciary will have quasi-legislative and quasi-executive powers.

Is it not a fact of reality that international law prescribes the conduct of war? And is international law not largely a reflection of the aggregate of Common and Constitutional law? The judiciary has quasi-executive powers in that it can set the boundaries of the executive’s war powers. More directly, the judiciary determines what is and what is not cruel and unusual punishment, which again has a determinate effect on executive power by establishing its range and measures.

What is true of all branches of government, namely that they have their core powers, but also share overlapping powers with each of the other branches, is true of the judiciary, since it also has quasi-legislative powers. The Supreme Court exercises these quasi-legislative powers when it extends law beyond precedent. Judicial activism is an entirely legitimate and Constitutional phenomenon. More than that, it is an essential part of our government’s checks and balances.

Originalism iteself is a form of judicial activism, insofar as it is less a superior philosophy of law at the Supreme Court level, and more a way to rationalise preferred outcomes. This truth was visible today more than most, in Kavanaugh, where the line between judge and politician was firmly erased. Kavanaugh attacked the left and Democrats with vitriol. Conservative justices are conservative with the law because their preference is for conservative political outcomes, just as liberal justices are liberal with the law because their preference is for liberal political outcomes.

You can try to rationalise away this conclusion, but really you’re just proving my point: reason is a powerful tool, and seductive — it can even convince you that you’re acting entirely rationally. Most of us think we are doing the right thing, but some of us are wrong, as time will tell.