Now that Justice Brett Kavanaugh is safely ensconced on the Supreme Court, I can finally talk about a recent op-ed by Claremont McKenna College professor George Thomas (this is a little thing called prudence, Sen. Sasse). In his piece, “Don’t forget about Kavanaugh’s troubling legal philosophy,” Thomas wonders about Kavanaugh’s method of constitutional interpretation: textualism.
Thomas notes that a straight appeal to the text of the Constitution alone is insufficient because “aside from clauses such as the mandate that the president be 35 years of age, almost all constitutional interpretation rests on unwritten understandings.”
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.”
This is the precise thing Harry Jaffa went after Robert Bork and Edwin Meese for in the 1980s: a legal conservatism that was unsure at best of the grounds of the Constitution. Jaffa contrasted the legal minds of his time to Lincoln, who always argued that the Constitution could only be understood by recourse to the principles of the Declaration of Independence.
Let’s hope Justice Kavanaugh’s jurisprudence has the same foundation, because that will largely determine the success of his time on the Supreme Court.