Kavanaugh Testimony, Part 2: Colloquy with Senator Kennedy

A Republican Senator discusses natural rights, majoriarianism, linguistic ambiguity and the difficulties of identifying original meaning

In the evening of Day 2 of the Senate Judiciary Committee Hearings, in a fascinating discussion, Senator John Kennedy of Louisiana questioned Judge Kavanaugh on inalienable natural rights and the feasibility of originalism (the last of these I highlighed in bold).

Day 2, Part V – Dialogue between Senator John Kennedy and Judge Bret Kavanaugh (43:55)

Kennedy:

Yesterday, I talked a little bit about how judges have limits on their power. And I don't know if I said it this way, but I think it's inappropriate for a federal judge to try to rewrite the Constitution every other Thursday to advance an agenda that either or his/her supporters can't get by the voters. Do you agree with that?

Kavanaugh:

Yes, of course, Senator. Judges interpret the law. They don't make the law, and that's obviously something that's repeated a lot. But it actually matters – if you keep that in mind, it matters.

Kennedy:

Judges also have another duty though. I didn't get to talk about it yesterday. Federal judges and state court judges have an obligation to protect inalienable rights even if the majority wants to take them away. That's why they call them inalienable. And I said this when Judge Gorsuch was here, if you think about it, in many cases the Bill of Rights is really not there for the high school quarterback or the prom queen. The Bill of Rights is there for the person who sees the world differently but has the right to do that. And I think that's important for a judge. Can we agree on that?

Kavanaugh:

Absolutely, Senator. I think the Bill of Rights protects all of us, but that includes and is most relevant for free speech of the unpopular.

Kennedy:

Right, even if the majority says "we're the majority" because we both know that sometimes the majority just means that most of the fools are on the same side. I mean, just because you're on the majority doesn't mean you're right, correct?

Kavanaugh:

Just because you're on the majority does not mean you're right is absolutely a correct proposition.

Kennedy:

That's why we have a Bill of Rights! Now I want to talk about – that's the easy part – I want to talk about how we go about making these decisions, and there's a tension there, and that has to do with the language. If I talked about the Holy Trinity doctrine, you'd know what I'm talking about, I'm sure. The Supreme Court has rejected the Holy Trinity doctrine. You talked about we're now textualists and are originalists, and you call originalism constitutional textualism, I think.

Kavanaugh:

Original public meaning, originalism, constitutional textualism – I think those describe the same thing.

Kennedy:

You start with the language, let's take a statute, with the language in the statute, and the first question you ask as a textualist: Is it ambiguous or unambiguous, correct?

Kavanaugh:

If there's a cannon of construction that is there that depends on a finding of ambiguity, that would be the question – otherwise, other than that, you would just say what is the best meaning.

Kennedy:

Yeah, you read the statute. You say: does it make sense? It either makes sense or it doesn't. How do you determine that? How ambiguous – you alluded to this, but how ambiguous does it have to be? Does it have to be 100% ambiguous? Does it have to be 51% ambiguous? Is there really any principled way to compare clarity to ambiguity? Or do some judges use it as an excuse to get to those cannons of interpretation about which they've already read in the brief to do what they want to do?

Kavanaugh:

I've said many times in my cases and talks to students that judges shouldn't be snatching ambiguity from clarity. So that's one thing. I think that goes right to your question – but to your broader question… That's one of my concerns about a few cannons of construction that depend on an initial finding of ambiguity, which sounds great in theory, which is, "Oh, if it's ambiguous, go to that cannon or this cannon or this cannon." But in practice, over twelve years, what I've found, and I've written about this, is that there's not a good way to find neutral principles on which to, in which two or three judges can agree on how ambiguous is ambiguity. And that's hard to even talk about. "Oh, I find it ambiguous," "I don't think it's ambiguous," and that is, in my view, frustrating the goal that I have of the judge as umpire—the evenhanded application of neutral principles in the rule of law. And ultimately that's concerned me because some of these cases where that's come up are big deal cases. Yet, it's dependent on this initial determination that when you unpack, and you actually sit in the judicial conference room like I do, it turns out to be very hard to apply in an evenhanded way. That's a concern I've identified.

Kennedy:

I'm with you on that. You advocate the best reading of the statute. Let's talk about that – and I want to talk about it, not in terms of the statute, but the Second Amendment. I want to talk about the Heller case. You define originalism as constitutional textualism, and the way to interpret the Constitution is to—tell me if I get this wrong now—how would a reasonable person at that time have understood the Constitution…the public knowledge.

Kavanaugh:

Right, the original public meaning. I always want to add, of course, precedent is a huge part of what we do in constitutional law, but if you're looking at the words, the original public meaning—you look at what the words mean. Sometimes the meaning changes. Often times it hasn't. But to your point, I agree.

Kennedy: It's almost an objective test.

Kavanaugh:

You're trying to make it as objective as possible. Absolutely. It is an objective test. Sometimes there's different evidence about what is the meaning of the word was…

Kennedy:

Sure, but you're not looking at intent.

Kavanaugh:

Correct. You're not looking at the subjective intent, other than to the extent that helps show…

Kennedy:

Right, we've thrown that out. Ok, if you look at the Heller case—and I'm talking about the DC v. Heller by the US Supreme Court—it wasn't a balancing case. You made that point clear at the court of appeal level. It was a text, history and tradition case. And Justice Scalia wrote the majority opinion. Justice Stevens dissented, and they both took an originalist approach. And I went back and looked. Scalia, this is what he relied on: founding era dictionaries, founding era treatises, he looked at English laws, American colonial laws, British and American historical documents, colonial era state constitutions – he looked at post-enactment commentary on the Second Amendment. And Justice Stevens, also using an originalist approach, looked at the same documents and then he added, he relied on linguistic professors, an 18th century treatise on synonymous words, and a different edition of the colonial era dictionary that Justice Scalia used. Pretty impressive. Here's my question: Doesn't the originalist approach just require a judge to be an historian? And an untrained historian at that? Wouldn't we be better off hiring a trained historian to go back and look at all of this?

Kavanaugh:

Well, the Heller case was one of the rare cases where the Supreme Court was deciding the meaning of a constitutional provision without the benefit of much, if any, relevant precedent. On most of the constitutional provisions, there's been a body of cases over time interpreting the provision, and you don't have to do the kind of excavation that Justice Scalia and Justice Stevens did in that case because it's been done before. The reason, I think, why the Second Amendment posed a challenge in that case, in terms of figuring it out, is the prefatory clause in the Second Amendment, which the question was: Did that define the scope of the right indicated afterwards – the right of the people to keep and bear arms shall not be infringed? Or did the prefatory clause merely state a purpose for which the right was ratified, and, therefore, you read the right as written: the right to keep and bear arms shall not be infringed. To figure out what the prefatory clause meant, you had to figure out, as a general proposition, how legal documents at the time used prefatory clauses, and what the purposes of those were, and that required a lot of historical excavation by the two justices who had the competing positions.

Unlike the Democratic senators, Senator Kennedy was able to marshal somewhat of a critique of Judge Kavanaugh's originalism. If Kennedy, a supporter of the nominee can manage this, one would think that Democratic Senators who object to Kavanaugh's originalism could do the same. But, for whatever reason, they did not even try. Unfortunately, Kavanaugh did not directly respond to Kennedy's challenge of how judges can be historians, asserting instead the rarity with which they may have to do so given the existence of precedent.

There are answers, however. He might have contended that judges should not be doing the historical research that originalism requires. That this research should be done by constitutional scholars--inside and outside of the law schools--whose evidence and conclusions can be challenged by other scholars in advance of any litigation. Then judges can select the arguments they find most persuasive, as they do when they evaluate competing expert testimony. Indeed, in Heller both Justices Scalia and Stevens relied on outside scholarship by both historians and legal scholars for the sources they mustered in defense of their conclusions.

Furthermore, discovering and mustering such evidence is well within the competence of those with legal training. Given enough time--which judges largely lack--lawyers are quite capable of identifying the meaning communicated by a text at the time it was enacted. You rarely hear historians claim that only they can discover the original meaning of statutes. One need not be a historian to perform this task, and historians and lawyers rarely reach different conclusions when they are attempting to answer the same question: what meaning was communicated to the public by the words in the text of the Constitution. Where they do disagree, the disagreement is typically about the significance of evidence, and not about the inherent inaccessibility of meaning to anyone but a trained historian. (And if historians think they have discovered some esoteric meaning in accessible to the rest of us, it is incumbent upon them to present their discovery for our evaluation. They are scholars, after all, and not a priesthood.)

Historians are as susceptible to motivated reasoning based on their political priors as legal scholars can be. We have certainly seen this in the debate over the original meaning of the Second Amendment. Which is why the review of peers in advance of a case or controversy is so important to the identification of the original meaning of the Constitution. But the Constitution was written to be understood by the general public. Indeed, the Constitution is the command of the general public to its servants in the government. Judges, who are given power in exchange for their oaths to uphold the Constitution, are obligated to discover--if necessary with the assistance of scholars--the meaning of their instructions from the people and adhere to those instructions in good faith.