At Dorf on Law, Eric Segall: We are All Constitutional Pluralists Now: Just ask Justice Brett Kavanaugh. From the introduction:
In the birthright citizenship case decided this term, Justice Brett Kavanaugh, a self-avowed originalist, detailed his method of constitutional interpretation. It might sound familiar:
The Constitution is an enduring document, and its principles were designed to, and do, apply to modern conditions and developments. The original constitutional principles do not change absent a constitutional amendment, but the relevant principles— both the rules and exceptions alike—must be faithfully applied not only to circumstances as they existed in 1787, 1791, and 1868, for example, but also to modern situations that were unknown or unanticipated by the Constitution’s Framers. Stated otherwise, the meaning of rules is constant…[but] their application to new situations presents a novelty.
Kavanaugh cited two of the most famous originalist judges in American history, Robert Bork and Antonin Scalia, to support this method of constitutional interpretation. Bork said, “it is the task of the judge in this generation to discern how the framers’ values, defined in the context of the world they knew, apply to the world we know. We must never hesitate to apply old values to new circumstances.” And here is Justice Scalia: “the application of existing principles to new phenomena—either new because they have not existed before or new because they have never been presented to a court before—is what I would call not ‘evolution’ but merely routine elaboration of the law.”
Kavanaugh used this framework to argue that even if the Supreme Court was correct in the late 19th century in United States v. Wong Kim Ark to find only a few limited exceptions to the Fourteenth Amendment’s rule that people born on United States soil are American citizens, further exceptions may be recognized by judges if “the new exceptions (i) are based on subsequent developments or circumstances that are new, i.e., largely unknown or unanticipated by the Framers of the Fourteenth Amendment, and (ii) are relevantly similar to the…Wong Kim Ark exceptions.”
Kavanaugh then argued that changes in immigration laws and practices allow Congress to amend current law to carve out from the Fourteenth Amendment’s citizenship promise new exceptions for children of undocumented immigrants and temporary foreign visitors. Congress, however, has not passed such a law, and Kavanaugh believed Trump’s challenged executive order was inconsistent with a current federal statute on the subject, so he concurred in the judgment overturning the executive order. But under his analysis, Congress could itself create the exceptions that Trump desires.
And from the conclusion:
Unfortunately, the Republican Party, the Federalist Society, and most “originalist” judges, legal scholars, and pundits use the label “originalist” to argue that they just “find” the law whereas living constitutionalist judges “make” the law. Originalists also routinely argue that only reliance on text and history can constrain judges. But those kinds of appeals are nonsense. As Kavanaugh, Bork, and Scalia recognized, constitutional litigation is the application of general principles to new circumstances. We must apply the First Amendment to the internet, the Second Amendment to assault weapons, and the Fourth Amendment to high tech police searches totally unknown to the founding generation. That analysis inevitably requires the judicial balancing of conflicting constitutional values, not the study of text and history, even if that balancing goes unstated.
There were important 6-3 cases this term divided along ideological and partisan lines but not because the justices employed different methods of constitutional interpretation. They are all constitutional pluralists who engage with text, history, precedent, and consequences. The liberal and conservative justices disagree over most important litigated constitutional cases because they have different values, not because some are originalist and some are not.
The legal community needs to move on from the tired, misleading, and functionally irrelevant debates over living constitutionalism and originalism. Justice Kavanaugh’s descriptive account of how judges decide constitutional cases is spot on. They apply old principles to new facts based on modern imperatives. Judges disagree about the imperatives, which is where the debate needs to take place.
Unsurprisingly, I disagree — that fact that Justice Kavanaugh wrote a non-originalist opinion doesn’t show that originalism is an empty concept, just that Justice Kavanaugh is not always an originalist. But I do agree with the assumption that adjudication under living constitutionalism (or pluralism, if you prefer) depends on the judge’s “values” or the judge’s assessment of “modern imperatives” (i.e., their policy preferences).
Posted at 6:17 AM