The most central debate in constitutional law today is whether to read the Constitution as a written document with a fixed meaning — the originalist position — or whether it can be changed over time without the further input of the people by judges, including the creation of rights and powers never written or contemplated by the people.
Dick Durbin tried to deflect the question of Ketanji Brown Jackson’s interpretive philosophy this morning by noting that she has a record of written opinions, but of course, that won’t end the inquiry. It might if Jackson had decided a lot of constitutional cases as an appeals judge; she hasn’t decided one. Less than a year ago, Jackson told Ted Cruz that while “the Supreme Court has said, a fixed meaning, that we’re to look to the original words,” she personally had “not had any cases that have required me to develop a view on constitutional interpretation of text in the way that the Supreme Court has to do.”
This morning, prompted by Durbin, Jackson gave an answer that pays tribute to the originalist position: “I’m looking at original documents. I am focusing on the original public meaning because I am constrained to interpret the text. Sometimes that’s enough to resolve the issue. . . .” That is not the end of the inquiry, of course; Republicans on the committee can and should probe further into how Jackson thinks through these issues and how her record shows her bending the law, at times, to reach favored outcomes. But it is another measure of the intellectual and political victory of originalism’s argument about the legitimacy of constitutional and statutory text that, rather than stand up for the progressive critique of originalist methodology, a Democratic nominee facing a Democratic senate professes to embrace “original public meaning.”