Kavanaugh’s Originalism: Why ‘In The Mold Of Scalia’ May Not Be Enough

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Alan Keyes Former Assistant Secretary of State
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What did Justice Scalia stand for as a judge? It’s not complicated, but it is profound and worth repeating often. The 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.” (Conservatives Hesitant on Kavanaugh Should read what he had to say on Justice Scalia.)

Sometimes, by looking at how visible heavenly bodies move in relation to one another, scientists can infer the existence of a third body otherwise invisible to their telescopes. Given human nature, however, I’m not sure this paradigm works when trying to conclude what a given individual will do in the future. This is the dilemma U.S. senators face as they try to infer what Judge Brett Kavanaugh is likely to do once confirmed as a Justice on the Supreme Court of the United States (SCOTUS).

The article quoted above suggests that it helps to look at what Judge Kavanaugh had to say about the late Justice Antonin Scalia’s approach to the Constitution. President Trump repeatedly said he would do so.

But any conclusions one derives would first have to take account of the internal consistency of the Constitution’s effect on Justice Scalia. We would expect its words to affect all his judgments. We would expect all his judgments to be affected by its words. Yet, as Judge Kavanaugh correctly observes, Justice Scalia insisted that one should “read the text of the Constitution as written” and not “make-up rights that are not in the Constitution.”

But the Constitution itself refers to rights not enumerated in the Constitution. The language of the Ninth Amendment reads: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

These words point to “certain rights” not spelled out in the Constitution. Furthermore, they state as a matter of fact, that the people retain these other rights. (To be retained, they must have been in their possession already, before the 9th Amendment was written.) Furthermore, the 9th Amendment safeguards these antecedent rights, by directing that no construction of the Constitution is permissible that uses the enumeration of rights it contains as the basis for denying or disparaging them.

So, there are rights not enumerated in the Constitution that cannot be denied or disparaged when construing the enumeration of rights it contains. Since these rights go unlisted how are they to be observed? If they are not observed, how can one dutifully avoid constructions that deny or disparage them?

Judge Kavanaugh notes that Justice Scalia allowed constitutional interpretation that was “mindful of history and tradition.” What, then, of the history in which the people of the United States upheld the view that all human beings are “endowed by their Creator with certain unalienable rights”? The words of the Constitution derive their authority from being ordained and established by the people of the United States.

In the Declaration of Independence, the people of the United States proclaimed that “the laws of nature and of Nature’s God” entitled them to sovereign independence. Therefore, it makes sense to observe that the unalienable rights alluded to in their Declaration of Independence are among the non-enumerated rights they retain, safeguarded by the Ninth Amendment.

They are not in the Constitution. Yet they are not to be “denied or disparaged” because of words that are in the Constitution. So, the assumption that Judges and Justices are forbidden to take care of rights that are not enlisted in the text of the Constitution contradicts the text of the Constitution. Indeed, the Constitution requires that they be careful of these acknowledged, but textually unspecified rights. But since the people of the United States wield sovereign power in light of “the Laws of nature and of Nature’s God,” they are obliged to respect those laws (or else endanger their claim to sovereignty).  

Now, in the judgment the people made against the sovereignty of the British King, they acted with the understanding that human beings institute governments to secure unalienable rights, endowed by their Creator. We may reasonably infer that any government they ordain and establish exists to do so.

The Scalia mold does not permit Justices of the SCOTUS to make up rights that are not in the Constitution. But the Constitution’s 9th Amendment requires them to be careful of rights the Creator, God made into an unalienable aspect of human nature. Such rights are not to be denied. Nor can any construction of the enumeration of rights be made to disparage (i.e., defame, for example by criminalizing them) or denigrate them (for example, by penalizing or otherwise persecuting people who practice them.)

It may be that we must, like the scientists mentioned at the outset, infer the existence of rights not visibly enumerated in the Constitution from what we know of other sources related to it. Contrary to Justice Scalia’s assumption, however, those other sources are not the law and the people. They are the people and the Declaration that upholds their sovereign authority. Since the Declaration’s logic depends on God, however, the two sources are determined to be the people and the God responsible for their existence, and indeed that of all Creation.  

By His endowment of right, the people incur the blessings of freedom, rightly used, rather than the curses that eventually must fall upon those who never cease to abuse it.

As a Roman Catholic, Judge Kavanaugh ought to understand that human law must respect the higher law of God. But his record suggests that he sees this as a personal view. In fact, it is the view without which the “mold of Scalia” becomes a hollow replica of the SCOTUS’s imposition of made-up rights and made-up law. Which will Brett Kavanaugh turn out to uphold?

Dr. Alan Keyes is a political activist, prolific writer, former diplomat, and the founder of LoyaltoLiberty.com

The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.