Date of Award
Restricted to Claremont Colleges Dissertation
Political Science, PhD
School of Social Science, Politics, and Evaluation
Ralph A. Rossum
Dissertation or Thesis Committee Member
Joseph M. Bessette
Dissertation or Thesis Committee Member
Kenneth P. Miller
© 2020 Lucas J Mather
Constitutional Law, Individual Liberty, Jurisprudence, Kavanaugh, Brett M., Natural Law, Separation of Powers
American Studies | Law | Political Science
This dissertation argues that the main theme of Judge Brett Kavanaugh’s Constitutional statesmanship during 12 years on the D.C. Circuit Court of Appeals is individual liberty and separation of powers. The scope in terms of time is Judge Kavanaugh’s time on the Circuit Court. Hence, the title’s use of “Judge” instead of “Justice.” The scope in terms of topic is Judge Kavanaugh’s Constitutional thought, and his public defense and application of the Constitution to specific issues. For Judge Kavanaugh, separation of powers protects individual liberty. Judge Kavanaugh holds that every case is a separation of powers case because of what separation of powers means for him. Separation of powers in the original design of the Constitution includes the judicial power and duties. This dissertation explains and fills out that normative meaning for him in Constitutional cases and controversies that came before him, as well as in his statesmanship off the bench, as well. So for Judge Kavanaugh, separation of powers in the original design of the Constitution has a morally normative arc. Its moral purpose is a desirable telos: to protect individual liberty. Judge Kavanaugh eschews the notion of Living Constitutionalism, but he does believe that the original Constitution perdures throughout time, and that its meaning is available epistemologically by the witness of its words, its structure, by applied logical analysis (argument by analogy, inference to the best explanation, analytical reason), as well as by its history and tradition. Therefore, for Kavanaugh, the original design of separation of powers is a normative good, both in the legal sense and in the moral sense, that ought to be preserved as the Constitution lives and endures in the present. This is, in a sense, a study in the natural law undergirding the purpose and justification of the original design of the positive law of the original structure of U.S. Constitution and the Bill of Rights. The dissertation shows that Kavanaugh believes all three branches—including the Supreme Court itself—is a danger to the separation of powers and hence to individual liberty that it was designed to protect. The dissertation explains that and fleshes that out. The method of inquiry used is appropriate to the material—a close, deep, careful, comprehensive, analytical, qualitative reading of the primary sources with a view to coherently synthesizing the meaning of the whole of his Constitutional statesmanship from the parts. The term “Constitutional Statesmanship” is gleaned from Kavanaugh’s own words, and it includes not only his jurisprudence on the bench, but also his off-the-bench public advocacy of the normative purpose and design of the original Constitution and Bill of Rights and related issues. Sources referenced are the relevant federal judicial opinions of all levels, Kavanaugh’s public off-the-bench writings in law reviews, magazines for lawyers, newspapers, as well as his presentations at universities or conferences that have been preserved and published on Vimeo, Youtube or some other website. The dissertation finds that Judge Kavanaugh’s Constitutional statesmanship is a coherent, morally rich natural law account of the original design of the Constitution and Bill of Rights, and how Kavanaugh believes that design is applicable, relevant, and necessary to defend today.
Mather, Lucas J.. (2020). Individual Liberty and Separation of Powers in the Constitutional Statesmanship of Judge Brett Kavanaugh. CGU Theses & Dissertations, 692. https://scholarship.claremont.edu/cgu_etd/692.