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Thread on Kavanaugh: I’m struck by the way self-identified originalists insist the “original public meaning” of constituional text is only legitimate way to interpret the Constitution, yet rely on their own broad inferences about constitutional structure where it suits them. /1
Originalists/conservatives decry & mock the idea of a reproductive & sexual privacy (and autonomy/liberty) right, unenumerated but implied by the enumeration or related rights & principles, recognized by SCOTUS in Griswold v CT & a long line following, including Roe v Wade. /2
But at the same time, they rely implicitly or explicitly on a broad conception of economic liberty, penumbras around free speech (to include, for example, campaign contributions), & other unenumerated but apparently implicit rights that happen to fit their political priors. /3
This quote from Kavanaugh at his hearing illustrates it well: “The whole document tilts toward liberty.” (But not the type of liberty that would, for example, ensure a state can’t prevent marrying someone of the same sex, or prevent control over one’s reproductive processes.) /4
Originalism is selective. It often relies on heuristics & methods other than “original public meaning of the text.” That’s obvious from a quote like that one. It’s obvious also from the worship of phrases like “separation of powers” & “federalism” not found in the text. /5
Some conservative scholars have acknowledged this. This Glenn Reynolds article is a good example. He provides persuasive examples of “penumbral reasoning on the right” - where conservative ideas’ support is beyond enumerated rights & textual evidence. /6 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=975140
Kavanaugh and others are free to characterize their views however they want. But we should be clear: many who support originalism seem awfully comfortable w/ interpretation way beyond the meaning of the text, where it supports their idea of “liberty” - but not others’. /end
+1: I've noticed that Kavanuagh often has portrayed himself as a "textualist" rather than an "originalist." That makes reliance on the Constitution's "tilt" even more bizarre. Note also: "Liberty" is mentioned only in the preamble & in the due process clauses of Amdmts 5 & 14.
