Kavanaugh’s real “originalism” revealed

George Washington’s road boat rage, captured on film

When Supreme Court nominee Brett Kavanaugh erupted in anger during his testimony to the Senate Judiciary Committee last Thursday, he unintentionally exposed a frightful irony of his jurisprudence

As a jurist, Kavanaugh is an adherent to originalism, the judicial doctrine whose practitioners claim to interpret the Constitution guided by its first meaning. Originalism bears scant resemblance to the constitutional thought of our nation’s elite founders. But Kavanaugh’s fury mirrors the Framers’ outrage at people who dared prick their arrogant bubble of self-superiority, offering a guide to his past rulings on the Washington, DC. federal Court of Appeals and his potential future ones, should the Senate confirm him.

Beginning in the 1980s, originalists professed to hew to the framers’ “original intent,” despite the logical impossibility of divining one truth from the squabbling men who wrote the Constitution. They moved on to “original meaning”—what the text meant to ordinary people. That only multiplied the problem, from applying it to the Constitutional Convention’s 55 delegates to the three million Americans at the time. They’re now onto “original interpretation,” purporting to channel how the nation’s first lawyers and judges enforced the Constitution, notwithstanding their many disagreements, and that we face a multitude of legal dilemmas unimaginable to 18th century Americans.

Originalism’s gyrations, all with the same result of reinforcing today’s conservative political positions, reveal what it’s about. Originalism is not a rigorous legal methodology, as many studies have demonstrated. Rather, it is a rhetorical strategy appealing to conservative politicians, donors, and voters that adorns bald conservatism with the powdered wigs of the nation’s revered founding men. There’s no better example than the great deference originalist jurists grant to for-profit corporations, gifting them speech and even religion—notwithstanding early Americans’ deep suspicious of them. Like other originalists, Kavanaugh’s legal positions don’t resemble those of the founders’ in 1789. They’re what conservatives want today.

However, Kavanaugh’s rage at the women he may have victimized and the Senators who contested the untarnished image he presents of himself eerily resembles that of the haughty men who wrote our nation’s governing charter—and it lines up pretty well with Kavanaugh’s judicial record.
The Constitution does not mention the word “slavery,” much less the relationship between workers and employers. But years after Ona Judge escaped from George Washington, who presided over the Constitutional Convention, Washington remained flabbergasted that she absconded, as he put it, “without provocation,” as though a lifetime of bondage provided no basis for unhappiness. He rejected Judge’s proposal to return as a free employee, huffily refusing to “reward unfaithfulness” by comparing her to the hundreds of enslaved people who, by not fleeing the forced labor camp that was Washington’s Mount Vernon, were “more deserving… of favor.” That sounds like Kavanaugh’s record in labor-related cases, where he has continually sided with employers against unions and workers, going so far in one dissent as to be chided by the majority for “creat[ing his] own rule.” So much for sticking to the original text.

Among the deepest concerns voiced during the Convention Convention was the danger of corruption. Yet delegate and Philadelphia financier Robert Morris indignantly complained in private about the “unmeritted abuse” of many well-documented charges over the course of his career that he skirted the law in business and exploited his public positions for private gain. By contrast Morris portrayed his own actions as “disinterested and pure as ever were made by Mortal Man.” Credence in the self-proclaimed righteousness of men out to make a buck—in contradiction to any founder’s public writings an originalist might find—pervades Kavanaugh’s championing of businesses over any governmental curbs on their actions.

One area in which Kavanaugh’s originalism and his fear of others’ dissent converge is in his scorn for democracy. The nation’s founders had no compunction about restricting the vote. Alexander Hamilton, Convention delegate and co-author of The Federalist little disguised his disdain for the voices of common people, abhorring what he thought ailed the Republic more than anything else: “our real Disease; which is Democracy.” Maybe that’s where Kavanaugh found his willingness to rule in favor of VoterID laws that will disproportionately affect access to the ballot for poor people and people of color, of which nearly all members of the Constitutional Convention would certainly approve.

Brett Kavanaugh’s outbursts during his Senate testimony uncovered his deepest connection to the Framers. It isn’t one borne of intellectual reflection. It’s one of insecurity that manifests as resentment—a resentment that fuels Kavanaugh’s approach to the law.


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