John Kerry's position on the abortion issue as a litmus test for Supreme Court nominees:
"I think people who go to the Supreme Court ought to interpret the Constitution as it is interpreted, and if they have another point of view, then they're not supporting the Constitution, which is what a judge does."
Is Kerry truly this empty-headed?
The essence of the textualist position is:
"The Constitution should be interpreted as it is written."
And the essence of one variation on the originalist doctrine is:
"The Constitution should be interpreted as it was originally intended."
Whether or not you agree with them, these are principles of constitutional interpretation. They impose a discipline on the judicial mind. Kerry's suggestion that judges or Justices "ought to interpret the Constitution as it is interpreted", by contrast, is a legal nothingism.
This provides a clear view of Kerry's fuzzy thinking on these important issues. Kerry cares not a whit for a principled rule of constitutional reasoning. He cares only that the current interpretations continue so as to keep the Roe rule alive -- an outcome-oriented approach.
Fortunately, for many reasons unrelated to this one, Kerry will never be a significant presidential contender.
(Original pointer by Eugene Volokh, who riffs on Kerry's disingenuous comment that his is "not a litmus test", and points out a Jeff Jacoby column making the same point.)
9:10:18 AM
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