Brett Kavanaugh and Constitutional Originalism: A Myth Unveiled
For many, the notion of a 'constitutionalist originalist' seems fixed and unyielding. However, in today's context, the idea is more of a myth than a reality. Every federal judge nowadays is interpreting both the Constitution and case law to make their rulings. This is because the world in which we live is vastly different from the one the Constitution was written in. Therefore, it is essential for judges to apply the principles of the Constitution to the current situation. This subjective interpretation has become the true differentiator among judges rather than whether they adhere to a strict originalist framework.
The Evolving Nature of Judicial Interpretation
The Constitution, drafted in a time when major American corporations were virtually non-existent, has seen profound changes over the years. For instance, the concept of corporations as entities separate from the individuals who own them was not anticipated at the time of the Constitution's writing. Today, judges must decide whether a corporation is to be treated as a person or as a separate entity that requires protection. Therefore, the interpretation of the Constitution's original intent is not static but rather dynamic and context-dependent.
Kavanaugh’s Alleged Deviation from Originalism
While staunch supporters may argue that Judge Brett Kavanaugh adheres to a strict originalist interpretation of the Constitution, a closer examination reveals that his views are heavily influenced by his personal political ideology and political affiliations. This is particularly evident in his approach to religious issues, where his interpretation often aligns with his party's desires for religious preferences. His interpretation seems more tailored to political outcomes than to an objective application of originalist principles.
The Flaws of Originalism
Originalism, the belief that the Constitution should be interpreted based on the original understanding and intent of the framers, is often seen as infallible. However, this belief is misguided. The Constitution may state that X, but the framers were not merely the writers of the words—they were also extensive interpreters of those words, detailing how and when X should be applied and what the intended outcome was.
Take the example of the separation of church and state. The original document does not explicitly mention this concept, yet Thomas Jefferson articulated his vision and the historical context in his Danbury Letter. Originalists would argue that the Constitution does not prohibit the intermingling of religion or religious preferentialism. However, Jefferson was clear that the separation of church and state was crucial to prevent the dominance of any one religion over others.
Antonin Scalia, a judicial idol for many originalists, was known for his aggressive promotion of his Christian views. Scalia had no problem with religious preferentialism as long as it aligned with his personal beliefs. This approach is far from originalist in nature, as it imposes a specific religious perspective on a diverse society. Conversely, Jefferson's vision was secular and aimed to ensure that government remained neutral on matters of faith.
Conclusion: A Call for Objective Judicature
Ultimately, the nature of judicial interpretation is complex and multifaceted. A strict originalist approach, as we see in Brett Kavanaugh's and Antonin Scalia's interpretations, tends to be biased and politically charged. The true challenge for our judicial system lies in maintaining an objective application of the Constitution, one that is informed by the original intent of the framers but also adaptable to the evolving needs of a modern society.
Frequently Asked Questions
Q1: What is constitutionalist originalism?
Constitutionalist originalism is the belief that the Constitution should be interpreted based on the original meaning and intent of the framers at the time of its drafting.
Q2: How does current judicial interpretation differ from originalism?
Current judicial interpretation is dynamic and context-dependent, often moving beyond strict originalist principles to accommodate contemporary societal changes and diverse interpretations.
Q3: Why is Brett Kavanaugh's approach to constitutional interpretation often criticized?
Kavanaugh's approach is often criticized for being heavily influenced by his political ideology, leading to interpretations that may not accurately reflect the original intent of the framers.