The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Last week I linked to Professor Steven Smith's essay proposing a new theory of originalism—"decisional originalism."
The first of the responses is now posted— Between the Original Decision and Abstract Originalism: An Unbiased Approach to Original Meaning, by Professor Mike Rappaport. From the introduction:
Steve's concern is that original meaning analysis has come to be distorted through what I call abstract interpretation. The Framers of the Constitution may have expected a constitutional provision to address a matter in a certain way. But by interpreting a provision to have an abstract meaning, current day judges can reach results that the Framers would have rejected.
I sympathize with Steve's complaint's about abstract originalism, but in the end I have to part company with his proposal. First, while I agree that originalist interpretation can be undermined by placing too much emphasis on principles and too little weight on expected applications, I nonetheless believe that both principles and the distinction between expected applications and original meaning have a role in originalist interpretation. Second I do not believe that the cause of genuine originalism would be advanced by promoting original decision originalism. Instead, the best solution is to rigorously apply an unbiased originalism that rejects interpretation based on the interpreter's values.
And in discussing originalism and gay marriage, he writes:
Consider the following example. Imagine that the Equal Protection Clause incorporated a principle that prohibited special laws—laws that drew an unjustified distinction between classes of people. Distinctions between people could be justified if they sufficiently related to what was deemed the public good. There is some evidence that the original meaning of the Equal Protection Clause adopted such a principle. (Although I do not believe this is the correct understanding of the Clause, that does not undermine the force of the example.)
The question under this view of the Clause is what is a sufficient public interest to justify distinctions. One likely way that such distinctions could be justified is by showing that they conformed to traditional moral principles that were widely followed at the time of the 14th Amendment. But what happens when those traditional moral principles come to be questioned in society? Under one interpretation, those traditional moral principles will continue to justify the distinctions. Under a second interpretation, those traditional moral principles will lose their justificatory force if they are no longer accepted in the society. (A key question is how much loss of acceptance is required for them to lose their force, but leave that aside.)
These two interpretations lead to different results for the constitutionality of laws allowing only traditional marriage. Under the first interpretation, gay marriage would never be required by the 14th Amendment because it violated traditional moral principles written into the Constitution. Under the second, if gay marriage came to be widely accepted as morally legitimate in our society, then laws allowing only traditional marriage would violate equality.
In my view, each of these positions is plausible. The choice between them will depend on an interpretation of the original materials. One cannot know the answer without doing the historical and legal research and evaluating the evidence.
It's worth reading the whole thing. I agree with basically all of it—originalists should resist the false binary of assuming that all clauses have to be interpreted at either a really specific or a really general level. To repeat Mike's point: "One cannot know the answer without doing the historical and legal research and evaluating the evidence."
For readers who want more on this topic, I'd recommend Mike's paper (with John McGinnis): The Abstract Meaning Fallacy.