an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Two interesting amicus briefs in Obergefell v. Hodges, the same-sex marriage case currently before the Supreme Court, go to the heart of the issues discussed in Living Originalism. And they exemplify the ongoing debates over the future of originalism as an approach to constitutional interpretation.
The Cato Institute brief, authored by William Eskridge (Yale), Stephen Calabresi (Brown/Northwestern), and Ilya Shapiro (Cato Institute), argues that a constitutional guarantee of same-sex marriage is consistent with the original meaning of the Fourteenth Amendment. The Fourteenth Amendment was designed to enforce equality before the law and ban class legislation. The brief draws the crucial distinction between the original meaning of equal protection of the laws and the original understanding of equal protection of the laws, arguing that only original meanings, and not original understandings, control.
This brief is closest to my own position in Living Originalism. The way I would put it is that although we are not bound by the original expectations of the framers, we should look to the principles they espoused, and draw analogies to the historical problems that they faced and sought to remedy, when we fashion constructions of the Fourteenth Amendment to resolve contemporary questions of constitutional law. Or put in the words of Robert Bork, our "responsibility is to discern how the framers’ values,
defined in the context of the world they knew, apply in the world we
It follows, then, that we should ask what the principles of class legislation, caste legislation, and equality before the law mean in practice in today's world in the context of gays and lesbians who seek the right to marry.
The second brief of Scholars of Originalism, joined by Larry Alexander (San Diego), Bruce Frohnen (Ohio Northern), William Kelley (Notre Dame), Nelson Lund (George Mason), Bob Pushaw (Pepperdine), Maimon Schwarzchild (San Diego), Steve Smith (San Diego), Lee Strang (Toledo), and William C. Duncan (Marriage Law Foundation), seems to have been filed largely to oppose the presentation of originalism in the Cato Institute Brief.
I say this because it is not clear which, if any, Justice is supposed to be swayed by the argument in the Originalist Scholars brief. The only two originalists on the Court (Scalia and Thomas) are unlikely to recognize same-sex marriage in any case, and none of the other Justices are actually committed to originalism, especially the stringent form the Originalist Scholars advocate in their brief. As far as I can determine, the Originalist Scholars Brief is designed to deny that that Cato Institute Brief is really originalist. Thus, it seems to reflect a sort of intramural scrum between different conceptions of originalism, rejecting the Cato version in favor of something believed to be more pure, authentic, or echt. It is yet another example of the continuing debates within originalism over who has the best version.
The Originalism Scholars Brief insists that one cannot separate original meaning from original understanding (or what I would call original expected applications):
[T]his distinction between what a provision “means” and what its enactors and the public subject to it “understood” it to mean is untenable. Indeed, and ironically, amici’s proposed distinction renders the notion of “original meaning” meaningless.
Interestingly, the Originalism Scholars appear to concede that Amendment 2 in Romer v. Evanswas unconstitutional class legislation, even though it involved discrimination against homosexuals, and even though the framers certainly did not intend to protect people who engaged in same-sex relationships: "Although sexual orientation would not have appeared on nineteenth-century lists of typical classes, a law defining a class of persons based on sexual orientation and deliberately subjecting that class to legal disabilities could fit within the historical conception of 'class legislation.'" No doubt the two originalists on the Supreme Court, Justices Scalia and Thomas, who dissented in Romer, would be surprised by this argument.
Even though they concede that the law in Romer v. Evans was unconstitutional, the Originalism Scholars argue that this says nothing about same-sex marriage. Denying gays and lesbians the right to same-sex marriage is not class legislation because same-sex marriage is not "marriage." Gays and lesbians are free to marry anyone they choose, as long as the engage in "marriage," which is between opposite-sex couples.
If the laws challenged here defined some class of persons (such as gay and lesbian persons) and denied such persons the legal right to marry, these laws might be considered class legislation. But traditional marriage laws do no such thing; under these laws, persons of any sexual orientation are wholly free to marry if they so choose.
I don't think that this definitional argument is an adequate response to the class legislation claim. That is because it doesn't really take seriously what it means to be gay or lesbian in our society today. It does not perform the task set forth by Judge Bork: "discern[ing] how the framers’ values,
defined in the context of the world they knew, apply in the world we
know." The argument treats being gay or lesbian as something one might discard or suppress if one wanted the benefits of a (loveless) marriage. So when the Originalism Scholars say, without any hint of irony or self-consciousness, that denying gays and lesbians the right to marry those they love can not possibly be class legislation, because denying them the right to marry does not "restrain" gays or lesbians to "a particular course of life . . . allowing only a limited enjoyment of property and relative rights," one wants to know what world they think they are living in.
But in any case, it seems to me that as soon as the Originalism Scholars accept that Romer is consistent with original meaning, they have fatally undermined their argument for tying original meaning tightly to original understanding, and they have implicitly conceded the correctness of some form of living originalism. As the saying goes, all that is left is haggling over the details. (Indeed, the Brief artfully says nothing about whether any of the Originalism Scholars think that Lawrence v. Texas is correctly decided, but it would seem to me that the class legislation argument applies equally well to Lawrence. My assumption is that the Originalist Scholars do not all agree among themselves on this question. Or perhaps a few of them fear that forthrightly stating that gays and lesbians can constitutionally be made criminals and sentenced to prison for acts of sexual love would fatally undermine the credibility of their argument before many of the Justices.)
The Originalism Scholars begin their brief by asserting that "If 'no one alive at the time' of the Fourteenth Amendment’s adoption believed that the provision had any implications adverse to the traditional conception of marriage . . . how then could its original meaning require invalidation of laws reflecting that conception?" Thus, the Originalism Scholars draw a strong connection between original meaning and original understanding or original expected applications.
But if that is so, one might well ask: If “no one alive at the time” of the Fourteenth Amendment’s adoption believed that the provision prevented states from criminalizing same-sex sodomy, how then could its original meaning require invalidation of Amendment 2 in Romer v. Evans, which imposes only civil disabilities? Indeed, this is precisely what Justice Scalia argued in Romer.
Indeed, one might well ask: If “no one alive at the time” of the Fourteenth Amendment’s adoption
believed that the provision prevented states from criminalizing same-sex
sodomy, how then could its original meaning require invalidation of criminalization today?
Again, see Justice Scalia's dissent in Lawrence.
Later in their brief, the Originalist Scholars explain:
Thus, amici are able to assert that traditional marriage laws are impermissible “class legislation” only by elevating that concept to a level of abstraction not intended, contemplated, or foreseeable by its drafters or ratifiers, or by the general public at the time. In doing so, however, amici implicitly discard the actual historical meaning– the meaning intended and understood by actual human beings at the time. Moreover, they advocate and practice an interpretive method that is incompatible with constitutionalism as an enterprise in rational self-government.
But surely the same thing could be said of their acceptance of the result in Romer. Indeed, I wager that there are any number of other constitutional doctrines that some or all of the Originalist Scholars accept that would flunk this particular test of constitutional fidelity.
There is no escaping the fact that we are all living originalists now. Only some of us are willing to admit it.
The interesting question, at least to me, is why one would feel the need to assert a tight connection between original understanding and original meaning in this particular case-- same-sex marriage-- but not in a whole host of other cases in which the same complaint could be made? (Take for example, the argument that freedom of association limits the ability of public sector labor unions to collect dues from non-union workers. The concept of an unenumerated right to freedom of association as auxiliary to the Free Speech Clause is a product of the middle of the twentieth century. The reasoning from the understandings of 1791 to Harris v.Quinn--to the extent it is even plausible--will be every bit as abstract as any reasoning about the Fourteenth Amendment and same-sex marriage.)
The same issue applies to Judge Sutton's lower court opinion. Judge Sutton knows very well that he does not limit his decisions to original understanding in a wide range of cases, including cases of first impression. Indeed, he probably does not even think to ask in each and every case that comes before him, whether original understandings should control. If that is so, then what is it about the question of same-sex marriage that marks it as requiring this particular reassertion of a close link between original meaning and original understanding?
Like Mitt Romney, the Originalist Scholars and Judge Sutton somehow think it important to prove that they are being "severely originalist" in this particular case. Why is that? What is so special about same-sex marriage? What bona fides does this severity demonstrate?
I use the term bona fides advisedly. The last pages of the brief question the sincerity of the Cato brief as originalist by engaging in a puzzling form of guilt by association. Here I must quote a long passage (including a key footnote) in full:
Decades ago, sophisticated critics of originalist constitutionalism—Ronald Dworkin, for example—were advocating that judges should enforce the general “concepts” reflected in the Constitution, not the specific “conceptions” contemplated by the enactors. See, e.g., RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 134-37 (1978). The difference is that the older critics understood and acknowledged that they were opposing historical meaning as an authoritative criterion. See, e.g., RONALD DWORKIN, LAW’S EMPIRE 359-69 (1986). By contrast, some more recent theorists make prodigious use of the “abstraction” strategy, while continuing to claim the label of “originalism”; the Cato Brief is very much in this vein. In doing so, these academic theorists are sometimes forthright about their purpose of dissolving originalist constitutionalism into non-originalist or “living constitutionalism,” its erstwhile rival.7
7 The most prominent example is probably Yale professor Jack Balkin. See JACK BALKIN, LIVING ORIGINALISM (2011). Balkin achieved prominence some years ago as a leading “deconstructionist,” and his recent turn to originalism has sometimes been viewed as an effort to “deconstruct” originalism, as indeed the title of his book suggests. Professor Calabresi, a signatory of the Cato Brief, is among Professor Balkin’s adherents.
Remember, this is not a catty remark delivered in a faculty lounge; it is an amicus brief before the United States Supreme Court--directed to Justices who generally care very little about intramural academic debates.
I am trying to figure out what rhetorical work this passage is supposed to be doing for any Justice who might come upon it. Is the idea that there some sort of foreign, vaguely French post-structuralist conspiracy to undermine originalism, whose fetid odors are wafting out of the chimneys of the Yale Law School? Is the suggestion that Stephen Calabresi, one of the founders of the Federalist Society, is a closet deconstructionist? (Of course, he did attend Yale Law School, and his uncle is a well-known liberal). Is the suggestion that Professor Calabresi and the Cato Institute have somehow been drugged or hoodwinked by a seditious army of Dworkinians, and now, like a pack of unconscious zombies, are sluggishly marching towards Washington on an evil quest to destroy constitutional government in America?
I think there is a far more innocent explanation. Originalism has always presented itself as a serious academic theory of constitutional interpretation that legal intellectuals can and should take seriously. It has raised, for some time now, some of the most interesting intellectual questions about the relationship between interpretation, change, and legitimacy. (I recognize that many of my more liberal colleagues will not agree, but that is my view.)
Serious academic theories are debated over time, and are subject to disputation and revision, precisely because they are serious academic theories and not dogma or apology. Originalism is in the midst of such an important set of academic debates right now. That is what makes it intellectually exciting and not dogma or apology. Professor Calabresi and I, and members of the Cato Institute, are participants in that debate, as are the authors of the Originalist Scholars Brief. These debates are important, and that is why the Originalist Scholars rise to defend their side of them. But the Cato Brief is just as much a voice in these debates as the brief of the self-described Originalist Scholars. Indeed, for the reasons I have described above, I think that the Cato Brief's approach will prove more lasting; the Originalist Scholars argument is simply untenable outside the context of this particular controversy.
Exercises in exclusion to achieve ideological purity often prove counter-productive, both on the left and the right. The Originalist Scholars brief may hope to kick Cato out of the originalist club in the eyes of the Justices, but that does not really settle the vibrant intellectual argument between them.