GW Law Faculty Publications & Other Works

Document Type

Article

Publication Date

2013

Status

Accepted

Abstract

The essay concerns one aspect of Justice Kennedy’s jurisprudence, namely, his use of some of the principal sources of the original meaning of the Constitution in his written opinions. By the term “sources of the original meaning of the Constitution,” I refer to the records from the Federal Constitutional Convention of 1787, the records of the state ratifying conventions, the Federalist Papers, dictionaries showing usage of language during the Founding period, and the acts of the First Congress. The goals of this essay are first to identify, quote, and describe passages in which Justice Kennedy has cited these sources, and second to draw conclusions about what these passages show. Although I clerked for Justice Kennedy in the October 1989 term, and have spoken with him regularly since then, he and I have not discussed this particular subject. My assessment is based solely on his written opinions.

My observations lead me to three conclusions: First, Justice Kennedy believes that sources of the original meaning of the Constitution are important, but he does not rely on them frequently. I found only 22 opinions written by Justice Kennedy that cite the Federalist Papers, the records of the Constitutional Convention, the records of the state ratifying conventions, or the Acts of the First Congress. Second, when Justice Kennedy cites sources of the original meaning of the Constitution, he usually uses the sources to confirm background principles rather than to resolve the specific issues before the Court. Third, Justice Kennedy is not opposed to using sources of the original meaning of the Constitution to resolve specific issues, but he has done it in very few cases.

GW Paper Series

GWU Legal Studies Research Paper No. 2012-66; GWU Law School Public Law Research Paper No. 2012-66

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