Guest Opinions

Deciding Kavanaugh: Where do constitutional rights come from?

Supreme Court nominee Brett Kavanaugh opening: ‘This is a circus’

In an emotional opening statement Supreme Court nominee Brett Kavanaugh strongly refuted Dr. Christine Blasey Ford’s sexual misconduct allegations during his senate hearing opening statement.
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In an emotional opening statement Supreme Court nominee Brett Kavanaugh strongly refuted Dr. Christine Blasey Ford’s sexual misconduct allegations during his senate hearing opening statement.

Brett Kavanaugh, President Trump’s choice to fill the vacancy on the Supreme Court, has excellent qualifications for the job. He graduated from Yale Law School where he was a member of the prestigious Yale Law Journal. He clerked for Supreme Court Justice Anthony Kennedy, and he has been a respected federal appellate court judge for 12 years on the D.C. Circuit, Justices Ginsberg’s and Scalia’s court before they were elevated. Moreover, Kavanaugh is a devoted family man, active in his church, and coaches his daughter’s basketball team. In his “spare time,” he is a professor of law at Harvard Law School, hired by Justice Elena Kagan in 2008 before President Obama appointed her to the Supreme Court in 2010.

Nevertheless, a senator from New Jersey greeted his nomination with a claim that it represented a moment of “evil” and that anyone who did not fight evil was “complicit” in it. The senator was joined by other partisan senators from the opposition party in a chorus of condemnation, and some tried to halt the nomination hearing Tuesday. Not surprisingly, Trump supporters hailed Kavanaugh’s nomination as a great moment in American history.

So, what’s going on? Why the heated partisan discord whenever a place on the U.S. Supreme Court opens up? What’s at stake? The answer: plenty!

We live under the rule of law. Our Constitution establishes a democratic method of determining what the laws are going to be that govern our lives and create our legal rights and responsibilities. Ordinarily, policy issues in our system are determined by the votes of the majority of our elected state or federal legislative representatives. However, because certain matters are so fundamental to individual liberty, we have explicitly removed them from the normal democratic process and decreed in our Constitution that no legislative majority – no matter how sizeable – can take them away from us. We call them “constitutional rights.” These fundamental rights are listed primarily in the Bill of Rights. They include the free exercise of religion; the freedom of speech and of the press; the right to keep and bear arms; the right to be secure in one’s person, house, papers, and effects against unreasonable search and seizure; the right to a fair trial if charged with a crime; the right not to be placed in double jeopardy or to be deprived of life, liberty, or property without due process of law; and the right not to be denied equal protection of the law.


As you are reading this list, you will notice the absence of some well-known familiar constitutional rights that protect other activities and behaviors from arbitrary legislative infringement. Those unlisted rights include the right to abortion, to same-sex marriage, to contraceptive birth control, of consenting adults to engage in homosexual acts, to control the education of one’s children, and to the right of mentally competent terminally ill adults to refuse medical treatment. But if these “rights” are not clearly identified in the Constitution, where did they come from? And this question brings us to the source of the furor about Brett Kavanaugh’s nomination.

There are two competing schools of thought among judges as to how to interpret certain words and phrases in the Constitution, words and phrases that are largely undefined. The school, to which Brett Kavanaugh generally subscribes – the “originalist school” – believes that a judge is bound by the text of the Constitution and by the reasonable meaning of the text’s words as used and understood at the time of the enactment. The reasoning behind this judicial philosophy is twofold. First, in a democratic republic, only the people can declare which subjects shall be excluded from the normal legislative process as individual constitutional rights, not five out of nine unelected judges. Second, only fidelity to the original meaning of the text provides a basis for principled decision-making as contrasted against the danger of allowing a judge to rely on his or her own personal evaluation of the merits or demerits of whatever matter is under consideration. If the language did not make it a constitutional right when enacted, it cannot become a constitutional right now by judicial interpretation.

Adherents to this school believe that amending the Constitution is the democratic way to include as a constitutional right a practice or activity that one believes should be protected but is not listed in the document itself — not creating it by judicial pronouncement. And if the Constitution is silent on the subject, then how to handle it is up to the appropriate state or federal legislative process. These judges contend that the constitutional interpretative process has nothing to do with whether a matter is good or bad for us, but only what the Constitution has to say about it, if anything.


The competing school of interpretation – the “living Constitution school” – holds that some of the protected rights listed in the Constitution were deliberately general, and that they represent enduring values and purposes that must be interpreted and applied in the light of “new understandings,” and according to the realities and needs of today’s world, not to the distant world of yesteryear. In this evolutionist school, judges interpreting the Constitution focus on the word “liberty” protected by the Fifth and Fourteenth Amendments, which mandate that no person shall be deprived of “life, liberty, or property without due process of law.” These judges believe that there are unenumerated liberty rights inherent in the values expressed in our Constitution, rights that are so important to our way of life that they may not be denied by any process, even though they do not explicitly appear in the text. These rights are called “substantive due process rights,” and they can be discovered by thoughtfully exploring the values and purposes inherent in the constitution’s text.

In order to identify these unlisted rights, evolutionist judges rely on such criteria as (1) the evolving standards of decency that mark the progress of a maturing society, (2) matters deeply rooted in the history and traditions of our nation that are implicit in the concept of ordered liberty, and (3) matters central to individual dignity and autonomy. To assist in this analysis, they draw from “new insights and societal understandings” and a “better informed and enhanced understanding of how constitutional imperatives now define a liberty that remains urgent in our own era.”

Both schools ardently profess their allegiance to the text of the Constitution, and both acknowledge that judges must not use the interpretive process to impose their personal views on the nation, but that’s where the agreement ends. Each school believes the other is misguided – and seriously so. The originalist school argues, for example, that not a word in the Constitution supports the idea that abortion, same-sex marriage or consensual homosexual conduct are protected by it. These judges also say that not a single person enacting the due process clause ever thought the word “liberty” would create a right to abortion, to certain sexual practices or to same-sex marriage.


The “living Constitution school” responds that times have changed over the centuries and that the document’s expansive general language expresses enduring values that are broad enough to be adapted to the United States of today. Evolutionist judges say they are simply adjusting the Constitution’s permanent values to modern times, not inventing new ones. The originalists deny that nine unelected justices are in a position to discern either the “evolving standards of decency that mark the progress of a maturing society” or what matters are “deeply rooted in our traditions and history.” Because of this problem, originalists argue that such matters are properly left to the people and to the democratic legislative or constitutional amendment processes. Their interpretative opponents point out the difficulty – indeed sometimes the impossibility – of discovering what the Framers meant in 1791, or what the 14th Amendment meant in 1868.

As you can see, the differences in interpretation may be technical, but the fallout in terms of some controversial behaviors and practices now protected by the Constitution against legislative majority rule are dramatic.

So this consequential dispute boils down to how in a democracy does something become a protected constitutional right? By formal enactment? Or by judicial interpretation? And who shall update our constitutional protections, the people or the judges?

Brett Kavanaugh asserts that he will not “make” the law, that he will do his best to discover what the law made by the people already is, and then faithfully apply it to the case at hand. His confirmation opponents fear that he will “turn back the clock” and erase from the books “liberty rights” they favor on the merits. The originalists respond again that the interpretative process is not one of evaluating a practice or activity as good or bad, but of discerning what the Constitution says about it.

However, when it comes to “turning back the clock,” Supreme Court justices are not free to revisit the rule of a previous case every time the issue comes up. No judicial system could do society’s work if it eyed each issue afresh in every controversy that raised it. The very concept of law views continuity as “indispensable” to the predictability and social stability that the concept requires.


This accepted fundamental principal of judicial restraint is called “stare decisis,” a Latin phrase which means “to stand on a decision already made.” Thus, the weight of precedent from cases already on the books counsels that it not be overruled unless it has turned out overtime to be manifestly misguided and unworkable. For example, the right to abortion established by the Supreme Court in 1973 by Roe v. Wade came again before the Court in 1992 in a case called Casey v. Planned Parenthood. Court watchers widely expected that Justice Kennedy – Judge Kavanaugh’s mentor – would cast the deciding vote to overturn Roe, but he did not. Why? Stare decisis.

At one level, this constitutional interpretative controversy is confusing to the general public. What? The Justices cannot even agree what the Constitution means and how to interpret and apply it to the hot button issues of the day? They decide these serious issues sometimes by a 5-4 vote? Moreover, this significant controversy has turned the confirmation process into a political battle royal over the future of the “rights” which the living constitutionalists have found in a word that is dear to us all: liberty. The New Jersey senator did not mean that Brett Kavanaugh is an evil man, but that to overturn precedent that the senator embraces would be a bad moment for the people which his favored rights now protect.

If this article has taught you anything, it is that “constitutional law” is far more complicated than you might have expected. But look at it this way: Aren’t we lucky to live under the “rule of law” instead of under the “rule of Putin”? Or the “rule of Xi Jinping”? Or the “rule of Kim Jong-un”? As imperfect as it might be, the “rule of law” in pursuit of liberty is far superior to totalitarianism as we seek ways in good faith to accommodate our differences. I hope this is something on which we can all agree.

Stephen S. Trott is a senior circuit judge on the U.S. 9th Circuit Court of Appeals.