The Trouble with Brett Kavanaugh: “Founding Father Knows Best”

Swearing-in Ceremony for Brett Kavanaugh to the U.S. Court of Appeals for the District of Columbia. Oval. Rose Garden.

Swearing-in Ceremony for Brett Kavanaugh to the U.S. Court of Appeals for the District of Columbia. Image courtesy of the White house.

Do you believe that the contours of your relationship with other people should be determined by a group of 20- and 30 year-olds living 250 years ago? This is what Brett Kavanaugh, Donald Trump’s new Supreme Court Justice pick, actually does believe. He believes this because even though he seems like a nice-enough, personable, normal-seeming fellow, as a boy, he was conditioned to believe in a collective fantasy that he is part of an imaginary “we” whose relations with each other are to be determined by the “intent of the Founding Fathers.” In other words, at a certain point in his childhood, perhaps in his eighth-grade civics class but to some degree even earlier, through rituals like the pledge of allegiance to the red-and-blue cloth in the front of the room, he came to split his consciousness in two. In his direct experience of real others like his family and schoolmates, he lived in the “personal” life that he still lives today; but in his imaginary life, he became to some extent hypnotized to think that he was “one of the we” who were created by earlier Beings invested with majesty and unique prescience, and whose intent we must follow today.

Antonin Scalia, when he was alive, gave a lengthy talk to the collectively delusional Federalist Society, explaining what he considered a rational basis for this “Original Intent” theory of interpreting the Constitution. In that talk, he said that we cannot trust each other and cannot know what each other want in life, and therefore the only way to determine how we must relate to others, to determine how we are “constituted” in “the Constitution,” is by looking to the exact words of the document itself, that piece of parchment still held under glass in a museum in Philadelphia. Evidently at the moment of the signing of that document, to Scalia, “we” momentarily existed together and reached agreement as to who “we” were. And since that’s the last time “we” were truly connected, we must apply “the law” based on what the 21 year-old Alexander Hamilton and the 25 year-old James Madison, and others of these “founding fathers” thought at that time.

That is why Brett Kavanaugh thinks that, say, 21 year-olds today have the right to own semi-automatic weapons. “We” (in the imaginary world that Kavanaugh is partly living in) cannot take away their so-called Second Amendment Right to do so according to the meaning of that Amendment’s words that is “found” by today’s robed figures sitting elevated from everyone else in the Supreme Court building using their supposed specialized training that has prepared them to project back into the minds of the larger-than-life “founding fathers” living in 1789. Never mind that the actual words of the Second Amendment seem likely to mean the opposite of what Kavanaugh thinks, the point I’m making here is that Kavanaugh believes the effort to limit mass murders in the United States today is dependent upon, and severely restricted by, the magical pronouncements of young men existing “at the dawn of our nation”.

All the discussion in the press about “originalism” and “textualism” as some kind of legal philosophy comes down to a collective “belief” – really a hallucination of sorts – of this kind. It is the story of grownups today, mainly men, who feel we cannot create our really existing social world out of our own freedom and moral convictions, but rather must defer to our Father, to our founding fathers. If this contributes to the killing of 17 high-school children in Parkland, Florida, or 20 six and seven year-olds in Newtown, Connecticut, it cannot be helped; it’s out of our hands.

If we want to create a loving and caring world based upon our inherent goodness, based upon our desire for authentic mutual recognition of each other’s beautiful humanity, then we have to relinquish any residual belief in magical documents written by magical fathers and the like. We have to do it ourselves and take the spiritual and social actions necessary to bring that loving world into being.

For more on the “the law”, and on the imaginary nature of legal narratives, and on their origin in our fear of other people whom we also long to love, please see my book The Desire for Mutual Recognition, chapter 5 (“Language, Thought, Ideology”) and chapter 7 (“Politics as the Struggle Over Who ‘We’ Are”).

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Editor’s Note: 
I had a similar discussion along these lines with Antonio Scalia after a talk he gave to

a few dozen lawyers at an invitation-only breakfast in the Capitol building in D.C. (don’t ask me how
I got invited). Scalia maintained that no legal system could possibly work unless it was founded on
the unchangeable foundation of “original intent of the founders.” I told him the midrash about Moses,
having asked God to show him what would become of his teachings in the Torah, is suddenly
transported to a large lecture hall some 1300 years later (approximately 120 C.E.) where Rabbi
Akiba is lecturing to hundreds of students. Moses doesn’t understand any of the points
he is making, yet at the very end of his talk, Akiba says “and this is what was taught to
Moses on Mount Sinai.” That reassues Moses that his teachings will continue, though in
directions that far surpassed anything he could understand. My point to Scalia was this:
Jewish law has evolved in dramatic ways over the course of the past 3200 years, and helped
keep Judaism alive, and yet it makes no pretense of being simply the intent of the founders. So
we have in the existence of Jewish law a concrete refutation of your theory that no legal system can
possibly work without the notion that its practitioners are interpreting the original intention of the
founders. Scalia was momentarily astounded, and then said simply “i never heard that story” and
continued in his delusional state.Meanwhile, like the snake in the Garden of Eden, Supreme Court nominee Brett Kavanaugh responds deceitfully to every significant question raised by the Democrats on the Judiciary Committee,
pretending that he is not the right-wing extremist ideologue he has been for the past decades, and as if he
will not be seeking to dismantle many of the human rights and programs for the wellbeing of the poor and the powerless which have been achieved through decades of struggle by all of us ordinary human beings, including voting rights for African Americans and rights for women to control their own bodies and lives free from “father knows best” practices that we all fought so hard to overcome. It is a shameful charade as will become apparent in future years after he is confirmed for the Supreme Court. –Rabbi Michael Lerner  Editor, Tikkun  rabbilerner.tikkun@gmail.com
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Peter Gabel is editor-at-large of Tikkun and the author most recently of The Desire for Mutual Recognition, published by Routledge Press.
 
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