In 1670, a Dutch philosopher named Baruch Spinoza published Tractatus Theologico Politicus, which advanced a then radical idea: Political and theological writings can be correctly interpreted only if their interpretation is located in an understanding of the time and place in which they were written. More prosaically, “love they neighbor” meant one thing in 1
In the next century, it was a French political philosopher named Montesquieu who picked-up the baton, writing a treatise known as The Spirit of the Laws and arguing that laws are enacted in particular places, at particular times, by particular people, in response to particular circumstances; they have an aim, and an animating spirit. The jurist, then, is to identify the principle that undergirds the particular and apply it to new circumstances. Nearly always, this is what is going on when you hear howls about judges “making law.”
Consider ‘privacy,’ for instance. The word never appears in America’s founding documents, but is everywhere implicit. When the courts defend your privacy they aren’t making new laws but respecting what is plainly there — even if the Founders didn’t know diddly about cell phones.
In complex cases, courts will research the legislative history of a bill in order to better understand the spirit that animated its passage.
Justice Antonin Scalia, lauded by the Right as ‘brilliant’ and so forth, famously refused to investigate the legislative history of the law, no matter how complex the case. He did not interpret the law, and in fact refused to interpret the law; what Scalia did is diagram sentences. That is not brilliance, but textual fundamentalism; it is the intellectual laziness of a man who wouldn’t do the hard work of discerning and understanding, and the intellectual cowardice of a man resolved to never be startled.
And insofar as Brett Kavanaugh is in that same anti-intellectual tradition, he is unfit for the court and should not be confirmed.