Four decades ago, New York senator Daniel Patrick Moynihan, an intellectual Democrat, observed with amazement and regret that Republicans had become the party of ideas. Today, many of America’s most interesting arguments divide conservatives. One concerns the judiciary’s role in the supervision of democracy: Should judges be, as Oliver Wendell Holmes and Robert Bork believed, deferential to majorities, or should judges be engaged in limiting majorities in the name of liberty? Another intramural conservative debate is whether “originalism” is sufficient as a method of construing the Constitution. So, Brett Kavanaugh’s Senate interrogators might usefully ask:
“Originalists” say the text should be construed by discerning the public meaning of its words when they were written. The 1866 Congress that drafted the 14th Amendment’s guarantee of “equal protection of the law” continued to fund racially segregated schools in the District of Columbia, which Congress controlled. Yet the 1954 Brown decision held that segregation violated that guarantee. Can originalists defend the Court’s reasoning in Brown? How might the Court have better reached the Brown result?
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?
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?
Holmes said: “I don’t care what [the Constitution’s Framers’] intention was. I only want to know what the words mean.” But can the meaning of words be severed from the intentions of those who use them?
Abraham Lincoln said the Declaration of Independence is the “apple of gold” that is “framed” by something “silver”: the Constitution. Silver is less precious than gold; frames serve what they frame. Do you believe that the Constitution’s authors intended their words to advance what the Declaration began — the securing of natural rights? 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?
When the First Congress debated what became the Bill of Rights, a member questioned why the drafters enumerated only certain rights. Massachusetts representative Theodore Sedgwick replied: “They might have gone into a very lengthy enumeration of rights; they might have declared that a man should have a right to wear his hat if he pleased; that he might get up when he pleased, and go to bed when he thought proper, but [I] would ask the gentleman whether he thought it necessary to enter these trifles in a declaration of rights, under a government where none of them were intended to be infringed.” By what principles do you determine what rights are neither trifles nor enumerated?
Justice Clarence Thomas says, “We as a nation adopted a written Constitution precisely because it has a fixed meaning that does not change.” 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?
Bork said “the central problem of constitutional law” is: “Our political ethos is majoritarian, but the Supreme Court, with the power to strike down laws democratically enacted, is counter-majoritarian.” Others, however, say that majority rule is a process; the purpose of America’s collective existence is an outcome, a condition: liberty, which the process can threaten. What say you?
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.
Finally, University of Chicago and New York University professor Richard Epstein says the Constitution’s architecture — separation of powers, checks and balances, federalism, guarantees of individual rights — implies a “presumption of error”: The architecture intentionally slows the political process because government interventions in society’s spontaneous order are presumptively of dubious legitimacy because government is presumed to be not disinterested but serving factional interests, or its own. Discuss.
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