When one comes to Notre Dame, whether for a law review symposium or for a football game or for both, your mind is drawn to fundamentals and history. This is a place that oozes history, and in that vein, I want to take a step back and focus on the text of our Constitution. I want to focus on that text in two dimensions. First, I want to explain how the text of the Constitution creates a structure—a separation of powers—that protects liberty. And in particular, I want to emphasize how that structure tilts toward liberty, how it creates legislative and executive branches with finely specified powers so as to protect individual liberty against oppressive legislation. Second, I want to focus on the role of the Supreme Court in that constitutional structure—and how the Court itself looks to the precise words of the constitutional text both to preserve the separation of powers established by the Constitution and to protect individual liberty. My overriding message will be that one factor matters above all in constitutional interpretation and in understanding the grand sweep of constitutional jurisprudence—and that one factor is the precise wording of the constitutional text. It’s not the only factor, but it’s the anchor, the magnet, the most important factor that directs and explains much of constitutional law, particularly in the realm of separation of powers.
Brett M. Kavanaugh,
Our Anchor for 225 Years and Counting: The Enduring Significance of the Precise Text of the Constitution,
Notre Dame L. Rev.
Available at: http://scholarship.law.nd.edu/ndlr/vol89/iss5/1