To understand whether Kavanaugh had a right to dinner at Morton's, we must first look to the pre-constitutional context of medieval England to understand dinner's place in the Anglo-American legal tradition.Antonin Scalia relied upon this time period in his majority opinion in District of Columbia v. Heller, as did Justice Samuel Alito in his majority opinion in Dobbs. There is surely no better way to decide the scope of rights enjoyed by Americans living in 2022 than by surveying the works of legal thinkers from a different country, most of whom died well before the first shot was fired at Lexington and Concord.
In medieval England, Parliament occasionally passed what are known as "sumptuary laws" to regulate private consumption of goods and services. [...] "But, as to excess in diet, there still remains one ancient statute unrepealed, which ordains that no man shall be served at dinner or supper, with more than two courses; except upon some great holy days there specified, in which he may be served with three," he wrote. Kavanaugh himself conceded that the supposed right to dinner did not extend to every course by allegedly skipping out on dessert.
Medieval English laws also sometimes imposed even greater constraints when it came to eating beef on certain days, as may be relevant in Kavanaugh's case. We don't know what he ordered at Morton's, but since it's a steakhouse, we can make some reasonable inferences. A law passed in 1548 under Edward VI authorized fines of 10 shillings or imprisonment of 10 days for any Englishman who ate meat other than fish on the prescribed days, reflecting the common Christian practice at the time. The statute explained that "due and godly abstinence is a mean[s] to virtue" and expounded upon the need to "subdue men's bodies to their soul and spirit." [...]
I also know that my analysis might come as a surprise to a great many Americans, many of whom have quietly enjoyed a right to dinner for their entire lives even if they didn't actively realize it. One of originalism's chief virtues, however, is that nothing is ever really settled in American constitutional law until an originalist says it is. If Morton's wishes to protect the right to eat dinner, it can try to persuade the same people who want to deny it to others. That, in the eyes of this Supreme Court, is what democracy really means.
John "James" Andrew Morrell came of age during America's age of charlatans.