Law as Custom vs textualism

Politico offers us various interpretations of Kavanaugh. Of interest is his "textualism and originalism", a concept that I tend to favour, though with caveats as this post will make clear. There's also a note about "a healthy skepticism of judicial deference to the administrative state", cue musing about the Deep State, but that's just a note to remind me for another day.

I find comments like "law is the end product of politics, not a continuation thereof, and the judiciary's duty is to enforce the laws (including the Constitution) as written". Or in K's own words "A judge must be independent and must interpret the law, not make the law. A judge must interpret statutes as written. And a judge must interpret the Constitution as written, informed by history and tradition and precedent".

The idea that one could source law from close reading of the original documents, and the problems of interpreting them, is familiar enough, whether you agree with it or not. But how does this fit into the "law as custom" framework?

The English common-law tradition, as expounded by say Hayek, is not that judges made law, but that they found it². The above, incorrectly I think, ignores that tradition by offering only a choice of making or interpreting. So that's a mark against K.

Consider, for example, the glorious Declaration of Independence, and the ringing words We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. Splendid words, and you can't remove their legal weight by asserting that they aren't formally part of the law. How do you reconcile them with slavery? You can't, obviously. At least, not honestly. You have to look the other way, evade them, or find some other hocus-pocus. But when the DofI was written, slave-owning was customary - at least in certain parts - and so that was the law, no matter what the bits of paper said. That, in turn, points to the need to adapt law to the customs of the times, and not be too hide-bound by niggly words¹.

Refs

* The Armalite and the ballot box
* SCOTUS-pocus
* Evasive Entrepreneurialism and Technological Civil Disobedience: Basic Definitions
* SCHNARE SNARED IN TANGLED TULSA WEB
* Judges in the U.S. are Supposed to Enforce the Constitution - CH
* Volokh

Notes

1. You might be tempted to assert that abiding strictly by the niggly words is therefore a good idea, because if only the judges had abode by the niggly words, then all those slaves would have been freed. But you'd be wrong.

2. 2021/06: CH offers: The freedom of the British which in the eighteenth century the rest of Europe came so much to admire was thus not, as the British themselves were among the first to believe and as Montesquieu later taught the world, originally a product of the separation of powers between legislative and executive, but rather a result of the fact that the law that governed the decisions of the courts was the common law, a law existing independently of anyone’s will and at the same time binding upon and developed by the independent courts, a law with which parliament only rarely interfered and, when it did, mainly only to clear up doubtful points within a given body of law. One might even say that a sort of separation of powers had grown up in England, not because the ‘legislature’ alone made law, but because it did not; because the law was determined by courts independent of the power which organized and directed government…