At today's Senate Judiciary Committee hearing, Sen. John Kennedy (R-LA) questioned Jennifer Mascott, nominee to be United States Circuit Judge for the Third Circuit.
00:00Professor, congratulations. I believe you testified that you think the Constitution
00:11should be interpreted according to its original public meaning. Is that right?
00:19Yes, Senator.
00:20What does original public meaning mean?
00:23Yes, Senator. So the original part of that phrase refers to the fact that when we look
00:32at interpreting a text, we want to interpret it at the time it was...
00:35Professor, look me in the eye and just answer my question. What does original public meaning mean?
00:43It means the meaning of the text as it was understood by the public at the time it became law.
00:50Okay. So you think Brown v. Board of Education was incorrectly decided?
00:58Well, Senator, I think Brown v. Board of Education was correctly decided. Scholars who have looked
01:05at the original meaning of phrases at that time and the reasoning in that case sometimes question
01:11the reasoning of the case.
01:12How many people in the United States of America at the time the Constitution was drafted do you think
01:19supported racial integration of schools? Do you think that was a majority view, do you?
01:25Well, Senator...
01:28At the time...
01:29But first, Professor, do you think that was a majority view? Do you think most Americans
01:34at the time the Constitution was drafted supported integration of public schools, racial integration?
01:41Well, Senator, I don't know as a sociological matter what percentage of people thought what
01:47at that time. I should point out that when we got to Brown v. Board of Education, of course,
01:51there had been several fundamental amendments to the...
01:53But isn't that inconsistent with your statement that you have to interpret it according to original
01:58public meaning?
01:59Well, what about the 14th Amendment and the 13th Amendment and the 15th Amendment? So original
02:03public meaning would mean...
02:04Well, what about...
02:05Well, that would mean we would interpret those amendments and those protections with the
02:08understanding of the text and structure at the time those amendments were ratified, which
02:13is different, of course, in the 19th century.
02:15Let's go back to Brown v. Board. Look, I think Brown v. Board was correctly decided, and I
02:23suspect you do too. But if you say we interpret the Constitution according to the way that people
02:29at that time understood it, do you really think that people at that time in America supported
02:37racially integrated schools? Do you really believe that?
02:41Well, Senator, I think at the time of the ratification of the 13th, 14th Amendment and 15th...
02:46But do you think people at that time originally, at that time supported integrated schools?
02:52Well, Senator, on that particular question, I don't know it as a policy matter whether they
02:57were thinking about that particular issue. I think they certainly understood that the
03:0114th Amendment, for which a massive part of this country essentially lost lives fighting
03:06the Civil War, certainly understood it to require racial equality.
03:09Professor, you're not answering my question. I'm trying to understand how you...
03:13I'm just trying to understand how you think. It's very easy to say, we interpret the Constitution
03:20according to its original public meeting, which I, as I appreciate your testimony, means
03:26the way people who read the Constitution at that time interpreted it. Is that right?
03:32Yes, Senator.
03:33Okay. Do you think that most people at that time looked at the United States Constitution and
03:42said, well, here it is, big as Dallas, racially integrated schools are required? Do you really
03:50believe that? Senator, I don't know, but I...
03:53And if you don't, I don't think you do, because I think historically that wasn't the case.
03:58So how do you square that with the holding of Brown v. Moore?
04:02Well, I guess what I'm trying to say is I think there are several steps in between that have not come
04:07up yet in our conversation, which is that you look at the text and structure, which of the 13th,
04:1114th, and 15th Amendments clearly is requiring racial equality. And then over time, that has
04:18to be applied to different questions as they arise in context. So if the requirement is that
04:24all races be treated equally under the law, and the evidence shows that segregated schools
04:29is not doing that, then the requirement could be applied to integrate schools.
04:33When you interpret a statute, you talked about interpreting it according to its plain meaning.
04:41What if the statute is ambiguous?
04:45Well, Senator, if the statute...
04:47What do you do if it's ambiguous?
04:48If it's ambiguous on the particular question coming before the court, I start with that phrase,
04:53but I also look at the context of surrounding provisions.
04:56I understand you define ambiguity as the language plus the surrounding language.
05:05Yes. I get that part.
05:07How ambiguous does it have to be? 51% ambiguous or just a little bit ambiguous?
05:15So I have to say I would use the same approach essentially in all cases, regardless of the ambiguity,
05:23because I would always start with the text, move to the surrounding provisions with the aim
05:27of fully understanding what Congress and the President had enacted. And only at that point...
05:31Professor, I'm going to run out of time. With respect, answer my question.
05:36Well...
05:37You're giving me professor talk. How ambiguous does it have to be?
05:42I mean, I think under the Supreme Court's recent precedent in Chevron, it underscored that the court can never just rest and say it's ambiguous.
05:50The court has to come up with an answer.
05:52Yeah.
05:53So I would...
05:54So why don't you just look at legislative history?
05:56Well, I would...
05:57Well, you can't look at legislative history of statements one by one because...
06:01Why not?
06:02The individual intent...
06:03Why not?
06:04Senator, with respect, because this body has its role in our system as an institution, not one by one.
06:09So your personal understanding of the law doesn't matter.
06:12This will be my last question. I'm sorry.
06:14Well, Coons went way over.
06:17So you're telling me that it doesn't help you at all to go through and look at the congressional record or read the committee reports or any of that?
06:25You don't think that's helpful in interpreting what a statute means?
06:29It depends on the way in which it's being read.
06:32If it gives helpful statutory history, if it helps to refer to other portions of context, sure.
06:38But not to give it legally binding impact in and of itself.
06:43I would always be looking at a broad range of sources and use each of these statements as just one piece of evidence about what people understood the statute to mean at the time.
06:52So, no, I would never take a piece of legislative history in isolation and give it legal impact.
