Justice Brett Kavanaugh visited Morton’s Steakhouse in Washington, D.C., on Thursday night for dinner. According to Politico, abortion rights protesters somehow learned of his outing and arrived outside the premises to protest his presence there. Such tactics toward the justices are increasingly common in the wake of the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization, in which Kavanaugh voted with the majority to overturn Roe v. Wade.
Politico’s reporting confirmed that Kavanaugh left through the restaurant’s back door to avoid the protesters. It also relayed an account from someone present that claimed the justice “did not hear or see the protesters and ate a full meal but left before dessert.” This relatively minor disruption still drew a scathing rebuke from Morton’s itself, which asserted that the protesters had violated Kavanaugh’s rights.
“[The] Honorable Supreme Court Justice Kavanaugh and all of our other patrons at the restaurant were unduly harassed by unruly protestors while eating dinner at our Morton’s restaurant,” the restaurant said in a statement provided to Politico. “Politics, regardless of your side or views, should not trample the freedom at play of the right to congregate and eat dinner. There is a time and place for everything. Disturbing the dinner of all of our customers was an act of selfishness and void of decency.”
Morton’s statement raises an urgent constitutional question: Is there actually a constitutional right to dinner? Or, more specifically, did the Constitution protect a right to dinner at the time that the Constitution was adopted? The Supreme Court has shown in Dobbs and other cases such as New York State Pistol and Rifle Association v. Bruen that originalism is the only proper method to answer these questions. My own originalist analysis of this issue leads me to conclude that no such right to dinner exists in our legal heritage. Accordingly, I do not think such a right should be recognized now.
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. These ancient statutes had a variety of goals: They sought to curb what was seen as excessive private luxury for moral reasons, they tried to shield English markets from cheap foreign wares, and they upheld the prevailing social divide between the nobility and commoners. Sumptuary laws often targeted a person’s clothing and garb but could often apply to food and drink as well.
Lord Blackstone, whose Commentaries were well known to the founding generation, noted that there was “much controversy among the political writers” about the “general utility” of sumptuary laws. “Baron Montesquieu laws it down that luxury is necessary in monarchies, as in France; but ruinous to democracies, as in Holland,” he observed. “With regard therefore to England, whose government is compounded of both species, it may still be a dubious question, how far private luxury is a public evil.”
English parliaments had a habit of passing sumptuary laws on luxury clothing under one monarch and repealing them under another, Blackstone went on to explain. “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.” It also spoke of the benefits of ensuring that England’s fishing industry would “thereby the rather be set on work” by a prohibition of eating non-fish meat, meaning that it would bolster their profits.
If the English Parliament could so freely regulate the nature of dinner, even by criminalizing it in some circumstances, it logically follows that the right to dinner was not deeply rooted in the Anglo-American legal tradition. That understanding persisted in the United States before and after the Revolution. The New England colonies used sumptuary laws to regulate the colonists’ dress and imposed taxes and licensure requirements on what they saw as excessive foods and drinks, like sugar and tea. At the Constitutional Convention in 1787, George Mason proposed that Congress be given the power to pass sumptuary laws, “after descanting on the extravagance of our manners [and] the excessive consumption of foreign superfluities” to his fellow delegates.
The convention did not ultimately adopt that proposal and implicitly left it up to the states, where it properly belongs. In other words, the Constitution does not take sides on the issue of dinner. The text of the Constitution does not refer to or encompass dinner. To be sure, the Supreme Court has held that the Constitution protects unenumerated rights that are deeply rooted in this nation’s history and tradition, and implicit in the concept of ordered liberty. But a right to dinner is not deeply rooted in American history and tradition.
This historical evidence also shows that dinner involves a “profound moral question,” as Alito said of abortion in Dobbs. That sets it apart from other constitutional rights that don’t raise moral questions, like what counts as cruel and unusual punishment or what counts as religious freedom. The nature of dinner—when it can be eaten, what can be served, and who may take part in it—is also a matter of sharp and persistent division among the American people themselves. That distinguishes it from other constitutional rights like freedom of speech and the right to bear arms, where Americans rarely disagree. Dinner is just different, for reasons I will hint at but never explicitly say and that definitely have nothing to do with my personal views on the subject.
Now that I have laid out such a clear and convincing argument, I want to take a moment to address some potential criticism of it. Some might find my use of historical sources to be selective and unscholarly. It is true that I am neither a professional historian nor an expert on medieval England, though I do have a bachelor’s degree in history, which puts me one step ahead of most of the current justices. A professional background in history is also not necessary to unearth the original public meaning of the Constitution. It can even be a hindrance to that enterprise, as shown by Alito’s dismissal of briefs filed by historians in Dobbs that sought to explain how eighteenth-century and nineteenth-century Americans viewed abortion.
Another possible critique is that I am misreading Anglo-American legal history to arrive at a predetermined conclusion by leaving out crucial context. What these critics fail to understand is that I only need to think about the broader historical context of why and how these laws were passed when it is convenient for me. This is how Alito brushed aside arguments about the unseemly rationales of nineteenth-century state lawmakers who passed abortion bans in Dobbs as mere “alleged legislative motives,” while Justice Clarence Thomas cited an abundance of historical context in Bruen to explain how centuries of English and American laws that prohibit the public carriage of weapons actually prove that the public carriage of weapons was a deeply rooted tradition.
In its statement, Morton’s appeals to even higher principles to justify the right to dinner by describing the protesters’ actions as “void of decency.” But if rights to privacy and bodily autonomy are too nebulous to be surmised from the Constitution’s text and structure, so too must be a right to be treated decently. What’s more, treating people indecently also has a long, deeply rooted history in the Anglo-American legal tradition. (My citation for this claim is any English-language history textbook.) It would be irresponsible and ignorant to cast aside history or tradition just because some people might think it’s “bad” or “reprehensible.” Morality can only be cited to limit a person’s liberties, not to expand them.
Like Kavanaugh in Dobbs, I would also like to reassure Americans about the scope of my interpretation. Just because I cannot find a right to dinner in the Constitution also does not mean I would reach the same conclusion on lunch, breakfast, second breakfast, elevenses, tea time, or supper. Indeed, breakfast is often described as “the most important meal of the day,” which could suggest a heightened status in the Anglo-American legal tradition. I also do not think that states could pass laws that prohibit their residents from traveling across state lines to obtain dinner. That would violate what Kavanaugh described as “the constitutional right to interstate travel.” (Please do not ask where the right to interstate travel is listed in the Constitution.)
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.