Hirono Makes Bizarre Argument Against Originalist Court Nominee

'You would not allow women and blacks to vote because that was not in the Constitution when it was ratified'

by Alex Griswold, Washington Free Beacon,  October 30, 2019

Sen. Mazie Hirono (D., Hawaii) attacked a judicial nominee Wednesday, charging that he would rule against suffrage for blacks and women if a hypothetical U.S. Constitution banned them from voting.

Hirono took issue with Trump 9th Circuit judicial nominee Lawrence VanDyke's statement that he would "look to the Constitution" when considering whether laws were constitutional. She said during a Judiciary Committee hearing such an approach would threaten the voting rights of minorities and women if the Constitution had not already been changed to ensure voting rights for minorities and women.

"You testified that you would look to the Constitution and what was meant in the Constitution at the time that it took effect, with enactment, ratification, whatever," Hirono said. "This was back in 1789, when blacks couldn't vote and women couldn't vote. So if the Constitution had not been amended to let women and blacks vote, you would interpret the Constitution as not allowing these groups to vote?"

"Senator, the Constitution has been amended, and I'm thankful it has been amended," VanDyke said. The 15th Amendment banned states from denying the right to vote on the basis of race in 1870, while the 19th Amendment did the same on the basis of sex in 1919.

VanDyke is a judicial conservative who advocates for "originalism," the legal philosophy that the Constitution should be interpreted in accordance with how its words would have been understood at the time of its writing.

"If the Constitution had not been amended and you're applying the Constitution as it was enacted, 1789, the Constitution had not been amended to allow women and blacks to vote. By originalism, you would have to interpret the Constitution as not allowing these groups to vote. Isn't that right?" Hirono said.

"Senator, I believe that we have a system of separation of powers," VanDyke replied. "I believe that my job as a judge is to apply the law, not to make policy decisions. And I'm very thankful that the Constitution was amended, I think that was the right process to do it."

"Yes, but you know what, the point I'm making, of course, which you're trying to get around, is that originalism means that you would interpret Constitution at the time of its enactment, and you would not allow women and blacks to vote because that was not in the Constitution when it was ratified in 1789," Hirono said.

Hirono was incorrect to claim the Constitution as originally enacted did "not allow" women and blacks to vote; it was silent on the matter. Several states allowed free blacks and women to vote before the passage of the 15th and 19th Amendments mandated such policies in every state.