Geoffrey R. Stone on a Question for Judge Kavanaugh About Constitutional Interpretation

Dems Need to Pin Brett Kavanaugh on Which Constitution He Supports

During the confirmation hearings for Judge Brett Kavanaugh, members of the Senate Judiciary Committee will no doubt ask him about his views on constitutional interpretation. In that light, I thought it might be useful to set out here brief descriptions of the four most common approaches to constitutional interpretation. Some of these approaches overlap in application, but they emphasize distinct interpretative priorities, and individual justices have invoked different approaches in different cases over time.

Judicial Restraint: Under this approach, which is associated with Justice Felix Frankfurter, among others, judges give broad deference to the elected branches of government. The underlying assumption is that elected officials should have the primary say both in matters of policy and in interpreting and applying the Constitution. Thus, under this approach, courts should hold government actions unconstitutional only if there is no rational justification for the action, where “rational” is understood as requiring a high degree of deference to the judgments of elected officials.

The primary argument in favor of this approach is that judges should be wary of imposing their own values and judgments on elected officials. The primary argument against this approach is that our Constitution recognizes the danger that political power can be abused, that elected officials are often tempted to misuse their authority, and that judicial review is necessary to constrain the actions of elected officials when they disregard the rights and limitations embodied in the Constitution. As Alexander Hamilton explained in Federalist 78, constitutional protections can “be preserved in practice” only “by courts of justice,” which must “guard the constitution and the rights of individuals from the effects of those ill humours which . . . sometimes disseminate among the people.”

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