The Originals

If you clicked on the link thinking I was going to post something about the popular TV show, you've come to the wrong place. Our topic for the day is Judge Brett Kavanaugh, and more specifically about originalism as it pertains to the judiciary.

By all accounts, Kavanaugh is an extraordinary jurist, respected by peers and pols on both sides of the aisle. Of course, that won't stop Dems from denigrating, muckraking, and dragging a good man's name through the mud during the confirmation hearings, all in the name of the agonizing ignominy of SLS (Sore Loser Syndrome - see Clinton, Hillary).

Liberal late-night pundit (hey - the Curmudgeon made an oxymoron!) Stephen Colbert even ridiculed Judge Kavanaugh's name, saying that "Brett" sounded less like a Supreme Court Justice and more like a waiter at Ruby Tuesday's. Of course, Colbert - who probably couldn't hold down a job as a waiter at Ruby Tuesday's, and isn't qualified to judge a middle school debate - is a buffoon.

Read this quote from Judge Kavanaugh, and then we'll address the issue of originalism vs. activism in jurisprudence (emphasis added):

"The Supreme Court Judge’s job is to interpret the law, not to make the law or make policy. So read the words of the statute as written. Read the text of the Constitution as written, mindful of history and tradition. Don’t make up new constitutional rights that are not in the text of the Constitution. Don’t shy away from enforcing constitutional rights that are in the text of the Constitution. Changing the Constitution is for the amendment process. Changing policy within constitutional bounds is for the legislatures. Remember that the structure of the Constitution –the separation of powers and federalism –are not mere matters of etiquette or architecture, but are at least as essential to protecting individual liberty as the individual rights guaranteed in that text. And remember that courts have a critical role, when a party has standing, in enforcing those separation of powers and federalism limits. Simple but profound."

Profound indeed, and that alone makes him an excellent choice for the high court: he gets it. He goes to the heart of the matter.

The second sentence in italics is why states' rights issues like Roe v. Wade or Obergefell (again, not taking a moral position, merely pointing out the legal reality) ought not to be the bailiwick of the Supreme Court. Note that I not only italicized the word "legislatures," I bolded and underlined the plural "s." For Judge Kavanaugh's use of the plural was quite intentional, and quite right.

You don't like the laws of your state? Work to change them. Educate people about your position. Try to persuade. Get out the vote. And if you still lose in the legislature ... well, that's democracy for you. Democracy doesn't say take your case to the Supreme Court and try to persuade them to legislate from the bench. Sore Loser Syndrome favors that approach, and it has nothing to do with democracy.

As for the first sentence in italics, there is a school of thought that says the Constitution should be a living document that changes as the times change. All well and good. Indeed, women's right to vote, the abolishment of slavery, and other important matters have been added to the Constitution over time -

Through the amendment process, as Judge Kavanaugh rightly notes. That process requires not only proposal by the U.S. House and Senate, but ratification by the legislatures of the requisite number of states - again, legislatures must take this action, emphasis on the plural.

Why is this so? Two reasons, one a matter of Constitutional law, the other of common sense.

Regarding Constitutional law, Article Five of the original Constitution - unamended, as drafted by the framers - stipulates the proposal and ratification process. It provides for the Constitution as a living document, but only through the amendment process - not by the courts.

Regarding common sense: the original Constitution was not drafted and adopted by the courts, it was drafted by the delegates to the Constitutional Convention and ratified by the legislatures - again plural - of the states. Thus why would it now be left to the courts to amend it, when there is no such provision or precedent in Constitutional law?

Further, if Congress felt strongly that abortion rights or same-sex marriage rights were Constitutional rights, why did they never propose amendments? They left these states' rights issues to be debated in the state legislatures and/or on state voting ballots - not because they were doing the right thing by leaving these issues to the states (which they were), but because they didn't have the political will to take on such polarizing issues - after all, it could cost them re-election.

So again, there is nothing to fear from Judge Brett Kavanaugh sitting on the Supreme Court - in fact, there is less to fear from a Justice Kavanaugh than there is from any Justice who voted to usurp the states' power in an activist decision, if one values the Constitution - and that's true whether you believe it should be a living, breathing document or not.

(As an aside, there are numerous examples of despotic leaders in other countries who re-wrote those countries' constitutions to suit their own whims and assure their own continued power, proving that to vest power to change the Constitution in the hands of a few is the ultimate act of oppression, as it strips the people of their right to self-govern.)