By Andrew L. Seidel
Brett Kavanaugh is an originalist in the mold of Antonin Scalia or Clarence Thomas. Originalism is one of the main reasons the Federalist Society approved him for its shortlist of judges and why the National Review endorsed him: he has “repeatedly taken conservative stands and fearlessly defended his textualist and originalist philosophy.”
But what does it mean to be an originalist? Despite its name, originalism is a fairly new judicial philosophy, rising to prominence about 30 years ago. It has plenty of critics, and for good reason, but rarely does an originalist judge demonstrate the hypocrisy of originalism as completely as Brett Kavanaugh did in a 2010 opinion involving atheists suing Chief Justice John Roberts over presidential inaugurations. To understand how hypocritical that opinion was, we first have to understand what it means to be an originalist.
What does it mean that Kavanaugh claims to be an originalist?
Originalist judges claim they are just sticking to the dry text of the Constitution, which doesn’t change except through a stringent amendment process. They claim to define the words in that text as the framers of the Constitution would have defined them at the time. In their mind, judges who don’t follow this philosophy are activists, legislating from the bench and harming our constitutional system.
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