Judge Kavanaugh and the sin of orginalism

The supporters of Brett Kavanaugh’s nomination to the Supreme Court will say a lot about his adherence to “originalism” and how a Supreme Court of originalists will apply and not make the law (“Save the Senate: Vote against Brett Kavanaugh,” Sept. 6). The originalists at the Federalist Society and the Heritage Foundation will be so strident in support, so dismissive of opponents, that one might overlook a crucial point: Originalism is bunk.

First, it is preposterous to assume that all the framers of the Constitution agreed on its meaning. As columnist Michael Gerson noted, “it is not meaningful to talk for a simple or single meaning for a document that resulted from difficult compromises. The Constitution was arguably ratified because different people understood its language in different ways.” Justice Antonin Scalia picked from his smorgasbord of dictionaries not just to help interpret the Constitution, but to bolster an interpretation he wanted. For example, Justice Scalia, the originalist, observed that the Constitution does not protect women from discrimination, though legislatures may prohibit such discrimination if they wish. But what if they don’t? Is it all right to discriminate against women in one state but not in another? And did Mr. Scalia make his argument when opponents of the Equal Rights Amendment said the ERA was superfluous?

Second, in cases where originalism cannot be used to decide cases, what guides an originalist in his decisions? Political ideology, which makes one suspect that originalism is a veneer and not the solid wood it claims to be. The case of Bush v. Gore is the perfect example. With originalism not in play, the conservative majority threw overboard their belief in states’ rights and used their raw power to impose a conservative president on the nation. The decision in Bush v. Gore was so egregious, the justices themselves declared that it was not be used as a precedent.

Finally, and perhaps most tellingly, the constitutional “philosophy” of the Federalist Society and the Enterprise Foundation perfectly aligns with the financial interest of those who pay for the Federalist Society and Enterprise Foundation. With a Supreme Court packed full of originalists, virtually every decision that might affect their pocketbooks comes up a winner for them. What a coincidence that the Constitution works only in their favor.

In order to sell a product that rewards them so handsomely to the detriment of the rest of us, originalists rely on the advertising gimmick of glory by association. We have no self interest in matters of the Supreme Court, they say. Heavens no. We are just doing the work of James Madison for the good of the country. Disagree with us and you disagree with James Madison’s vision for the country. Don’t take your objections to us, go fight with James Madison.

One need not be clairvoyant to see that a Supreme Court made in President Donald Trump’s image will leave most Americans poorer, sicker, and disarmed in the face of overwhelming corporate power. Just as Mr. Madison intended?

Daniel Rosen, Baltimore

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