Steven Smith

Resistance is futile.  “We are all living originalists now.”

That is the central message of a typically provocative and thoughtful post by Jack Balkin, criticizing an amicus brief (the Originalist Scholars’ Brief) in the same-sex marriage cases.  The Scholars’ Brief itself criticizes another amicus brief (the Cato Brief) written by Bill Eskridge and Steve Calabresi (and endorsed by Jack), which argues that the original meaning of the Fourteenth Amendment supports a right to same-sex marriage.

Jack might be right– maybe living originalism is irresistible-- although as one of the signatories of the Scholars’ Brief, I’m not yet convinced.  I do agree with Jack that original meaning cannot simply be equated with “original expected applications.”  That kind of narrow and untenable approach would not only make the Fourth Amendment inapplicable to electronic searches unknown to the founding generation (to invoke a familiar example); it would make constitutional references to “persons” inapplicable to you and me, insofar as the enactors never foresaw yours or my existence.  Another way to put the point is that the enactors themselves will have perfectly well understood that facts they did not anticipate (electronic searches, you and me) will fit into the legal categories (“searches,” “persons”) they created.

The Scholars’ Brief explicitly acknowledges all of this.  In this vein, the brief agrees that if the Fourteenth Amendment is interpreted as prohibiting “class legislation,” then not only the Black Codes that were an immediate concern of the amendment’s enactors but other instances of “class legislation” would fall within that prohibition– including, conceivably, a law that defined a class based on sexual orientation and subjected that class to legal disabilities.

In this respect, Jack says-- and finds it significant, and odd-- that the Scholars’ Brief concedes that Romer v. Evans was correctly decided.  Here he is not quite accurate.  The brief says, more than once, that Colorado’s Amendment 2 “as interpreted and invalidated by this Court in Romer” would be class legislation.  And the brief quotes that interpretation, in which the Supreme Court said that under the Colorado law                               

[h]omosexuals, by state decree, are put in a solitary class with respect to transactions and relations in both the private and governmental spheres.  The amendment withdraws from homosexuals, but no others, specific legal protections from the injuries caused by discrimination, and it forbids reinstatement of those laws and policies.

This was and is a contestable interpretation, to be sure; some of the signatories to the Scholars’ Brief may believe it was a serious misconstruction.  (I can attest that at least one of the signatories believes this.)  Even so,“as interpreted” in this way, the Colorado law is– or, if you prefer, would be-- “class legislation.”

But back to the question of inevitability, and futility.  If original meaning is not identical to “original expected applications,” then is there any stopping place short of the Grand Style, abstract principles approach favored by Jack and the Cato Brief?  If there isn’t, then perhaps Jack is right: whether or not we admit it, we are all living originalists (because there really isn’t anything else to be).

It is a hard question, I think.  But there at least seem to be intermediate possibilities.  Elsewhere I have cautiously proposed an approach that I reluctantly called “decisional originalism.”  This was only a tentative suggestion, and I have no reason to suppose that other signatories agree with it; they may favor other approaches or limiting principles.  Jack is surely right that there are interesting theoretical questions here.  The Scholars’ Brief acknowledges this fact as well, although, being a brief, it does not launch into an academic exploration.  Contrary to Jack’s impression, the brief nowhere suggests that he or others who share his approach are not entitled to be considered “originalists,” nor does the brief insist on any sort of originalist “purity.”  On the contrary, and for obvious reasons, it tries to be as generic as possible in its originalism, and explicitly declines to take a position on debates between “intentionalist” and “public meaning” versions of originalism.

As a result, and speaking for professors who almost certainly do not share a single view, the Scholars’ Brief itself does not say exactly what limiting principle should guide the originalist inquiry.  As it happened, this seemed unnecessary, because the interpretation offered by the Cato Brief itself would not cover traditional marriage laws such as those before the Court.  The Cato Brief argues, as noted, that the Fourteenth Amendment prohibits “class legislation.”  And although the brief is somewhat fluid about what this fluid concept means, its most pertinent definitions come from nineteenth-century sources which said that “class legislation” refers to “special codes for one class of citizens,” or to “laws restraining the activity of a class of persons, more or less strictly defined, to a particular course of life, and allowing only a limited enjoyment of property and relative rights.”

Under these definitions, the Black Codes would be “class legislation”; so would Colorado’s Amendment 2 as interpreted by the Court in Romer.  (Once again, please don’t overlook the qualifier.)  However, traditional marriage laws would not be “class legislation” under these nineteenth-century definitions.  This conclusion is not a “definitional argument”, as Jack seems to think, of the kind that says “‘marriage’ just means and has to mean X”; it is an observation about what the marriage laws do and, more importantly, do not do.   And to observe that marriage laws do not enact a “special code for one class of citizens” is not to deny that the laws have a disparate impact on gay or lesbian persons; the Scholars’ Brief expressly acknowledges that impact.  But disparate impact does not equal “class legislation,” at least as that term is defined in the Cato Brief.

But suppose that Jack is right (as I concede, sincerely, he might be): once we acknowledge that original meaning is not confined to “expected applications,” there is no viable stopping point short of the “grand principles” approach that he and the Cato Brief advocate and practice.  In that case I think we would face the really hard question.  What is the point of all of the deliberation and debate (with examples and counterexamples, asserted and denied), and the crafting and drafting and redrafting of constitutional provisions, if those provisions will shortly be interpreted in terms of lofty principles with implications (to be enforced, by judges, against democratic majorities) that the enactors never intended, imagined, or desired?  Why would sensible citizens and legislators engage in this peculiar exercise, bind themselves and their descendants in this profoundly unpredictable way?

As the Scholars’ Brief puts it: “On these assumptions, the constitutional enterprise would be not be so much rational collective decision-making as throwing darts in the dark.  And citizens and legislators would likely conclude that, on these assumptions at least, they would be well advised not to adopt any constitutional provisions at all . . . .”

This, I think, is the really essential and intractable conundrum that “living constitutionalism” leaves us with.  Jack Balkin has written insightfully and even movingly about the imperative of maintaining continuity with our past, and with those who came before us.  To my mind, though, he has not offered any satisfying answer to this conundrum. 

Steven D. Smith is Warren Distinguished Professor of Law at San Diego School of Law.  You can reach him by e-mail at smiths at sandiego.edu