A continuing theme in the criticism of Judge Brett Kavanaugh’s nomination to the Supreme Court has been that his references to consitutional originalism suggest he would reach a series of bad results in certain cases.

The standard indictment of originalism makes the following claims: 1) originalists think Brown v. Board of Education is wrongly decided and so they would resurrect segregation; 2) originalists oppose the incorporation of the Bill of Rights against the states and so they would let states violate fundamental individual rights; 3) originalists are opposed to equal civil rights for women and so they would uphold sexist laws and will overturn the recent Supreme Court ruling that legalized same sex marriage; 4) originalists would do away with the constitutional right to privacy; and, 5) originalists think that a constitutional provision means the same thing today as when it was adopted, which is unworkable because the world today is so different from what the world was like in 1791 or in 1868.

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First, originalist Justice Hugo Black joined the Supreme Court’s opinion in Brown v. Board of Education and neither Justices Scalia nor Thomas have ever criticized that case or failed to follow it. Originalist Stanford Law Professor Michael McConnell published a lengthy and scholarly law review article defending Brown v. Board of Education on originalist grounds, and I have published a lengthy originalist article that also defends the decision in Brown or originalist grounds, as well as an article defending the decision in Loving v. Virginia on originalist grounds, which struck down state bans on racial inter-marriage.