Senator John Cornyn, another skilled questioner (and former Texas Attorney General and Justice of the Texas Supreme Court), engages Kagan on constitional interpretation. Their exchange provides the best indication so far of how Kagan would approach this issue.
Using the decision in Brown v. Board of Education as a focus, they discuss whether Brown “changed the Constitution” or “restored its original meaning” or “changed the way the Court interpreted the Constitution.”
Kagan says that Brown certainly didn’t change the Constitution, but neither did it rest on the views of the Framers of the Fourteenth Amendment regarding the permissibilty of segregated schools, pointing out that the historical case is hard to make that the Congress that proposed the Fourteenth Amendment believed segregation was unlawful.
She points out that the Amendment’s guarantee of equal protection of the laws is framed in general terms precisely because its drafters did not mean to constitutionalize the practices that existed in 1868. Rather they expected the Court to apply this general principle to the new situations that would arise in the future.
This process of applying the general provisions of the Constitution is “highly constrained,” says Kagan, requiring consideration of the text, history, precedents, and principles recognized in those precedents.
Does that mean you support the concept of a “living Constitution,” Cornyn asks. (That term, which has its origin in some decisions of the Warren Court, now is used principally by conservatives to describe what they believe is a process in which judges decide cases based on their personal preferences.) Kagan says she doesn’t like that term, because it is taken to mean a “loosey goosey” form of interpretation.
What’s important here is that Kagan answered this question, and rejected an intepretive approach based solely on how the people who wrote the relevant provision of the Constitution would have decided the question.
