The Volokh Conspiracy
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In this recent post, co-blogger Orin Kerr takes issue with my and others' claims that there are originalist arguments for a constitutional right to same-sex marriage. I think Orin is wrong. But before explaining why, it is important to understand the nature of our disagreement. Orin's post doesn't claim that any of the four arguments he lists are wrong, merely that they aren't originalist. But his argument is either clearly wrong, or right only because it adopts an extremely narrow definition of originalism that would exclude most current versions of the theory, as understood by leading originalist scholars and jurists.
As Orin points out, each of the pro-same-sex marriage arguments he assesses has the following structure:
They each work in two basic steps: (A) assert that the Fourteenth Amendment adopts a broad principle, and then (B) argue that same-sex marriage laws violate that principle.
Orin complains that this structure is not distinctively originalist:
I don't yet see how these are distinctly originalist arguments. My primary problem is at step (A), the articulation of the broad principle. I am not an originalist theoretician, so maybe I am missing something. But I would think that for these arguments to be considered distinctly originalist arguments, at a minimum, the process by which we identify the broad principle that the Fourteenth Amendment adopts has to be based on specific constitutional text as it was understood by the public at the time of its enactment. From what I can tell, the originalist arguments made so far haven't really done that. As a result, I'm not sure there is anything distinctly originalist about these claims.
What is distinctively originalist about these arguments is precisely that they provide evidence that the "broad principle" was understood to be included in the text of the Fourteenth Amendment at the time of enactment. In that way, each of the four arguments discussed by Orin is readily distinguishable from "living constitution" arguments, which often appeal to principles that may not have been not considered by anyone at the time of enactment, but might (for a variety of reasons) be appropriate for courts to rely on today.
Orin complains that a truly originalist argument needs to go further than that:
[T]he idea of a general principle having an influence isn't the same as directly adopting a particular conception of that principle… To bridge the gap, and to show that the specific principle was adopted at the time, I think we need the originalist step of showing how the specific text was originally publicly understood as recognizing that identified principle…. [w]e don't need evidence that the particular rule adopted was a specific intended application of the text. But I think we need evidence that the principle was contemplated at the time of adoption at (or at least plausibly near) the level of generality at which it is to now be applied.
Much depends on what is meant by "directly adopting a particular conception of that principle" and "plausibly near." If it means a conception that goes beyond extremely vague generalities, then I think all four of the arguments Orin lists qualify. They all go well beyond simply saying that the original meaning of the Fourteenth Amendment protects equality in some vague sense. Rather, they explain how it applies to particular categories of discrimination, and cite relevant historical evidence indicating that these were the types of discrimination people at the time had in mind. For example, my argument that laws banning same-sex marriage are unconstitutional sex discrimination relies on Steve Calabresi's and Julia Rickert's extensive historical evidence showing that people at the time of enactment understood it to ban laws discriminating on the basis of gender in cases where those laws imposed arbitrary "class" discrimination, as opposed to responded to genuine differences in capabilities between the sexes. As I have previously noted, which cases of sex discrimination qualify as which depends on factual evidence that can change over time; we today know a lot more about how same-sex relationships function than people in 1868 knew (or, in most cases, even imagined).
It is possible, however, that Orin has a narrower definition of "particular conception" in mind, one that includes not only the principle itself, but the specific factual assumptions about where and how it would be applied - what scholars call "original expected applications." If people in 1868 did not specifically expect that the principle would be applied to same-sex marriage, then that's the end of the matter. Orin himself seems to disclaim this possibility when he writes that he is not asking for evidence of a "specific intended application of the text." But perhaps his conception of what counts as "plausibly near" the right "level of generality" is very narrow - only a short distance away from expected applications.
Such a narrow interpretation of originalism can qualify as a version of the theory. But it's not the one currently dominant among originalist scholars and jurists. Under it, originalists could not claim that the First Amendment protects expression on television or the internet, or that the Fourth Amendment restricts the state's use of thermal imaging devices. After all, these are things that virtually no one even imagined in 1791, much less considered whether the Bill of Rights would apply to them. The factual circumstances of speech and searches in the 18th century were "plausibly near" the circumstances of the internet and thermal imaging only under a very relaxed definition of either "plausible" or "near."
Originalism - like any remotely plausible theory of constitutional interpretation - must take account of changing factual circumstances. That reality has led many originalist scholars to reject "original expected applications" as a component of theory entirely. They include Randy Barnett, Jack Balkin, and Steven Calabresi, among others. These people may be wrong to exclude original expected applications from their versions of originalism. But it's hard to deny that they are originalists. Even most of those originalists who are willing to give greater consideration to original expected applications (e.g. - Akhil Amar and John McGinnis and Michael Rappaport; see also this directly relevant essay by Rappaport) do not claim that such applications automatically trump other considerations; they still leave considerable room for adjustment to changing factual circumstances.
Originalists disagree about many things, such as whose understanding of the original meaning is the one that really counts. But the vast majority leave considerable room for adjustments in the application of principles in light of changing facts.
In sum, if Orin's argument is correct, it can only be under a definition of originalism so narrow that it excludes the vast bulk of the theories that currently go under that name. None of this proves that the various originalist arguments for same-sex marriage are correct (just as Orin's post doesn't try to prove that they are wrong). But it is more than enough to prove that they clearly qualify as originalist.
UPDATE: I should note that if Orin wishes to advocate a new definition of "originalism" that is significantly different from the way the term is usually used today, I don't have any problem with that. Then he can certainly argue that the four theories he discusses don't qualify under the new definition - and also that the constitutional theories advocated by Barnett, Calabresi, Balkin, and most other constitutional theorists who are usually considered originalists don't qualify either. But if I interpret him correctly, he means to exclude these pro-same-sex marriage arguments from the definition of "originalism" as that term is currently used today by commentators on constitutional issues.
UPDATE #2: Georgetown law professor Larry Solum, a leading constitutional theorist has a thoughtful post on our exchange at his Legal Theory Blog. I agree with most of what he says (except that the range of originalist interpretations of the Due Process Clause and Equal Protection Clause is considerably broader than he implies, with, for example, many originalists in recent years rejecting the once-dominant view that the original meaning of the Due Process Clause protects only procedural rights). Although Larry equivocates on the issue of whether Orin's position is right or mine, I think the overall import of his post supports me: It shows that the implications of the Fourteenth Amendment for same-sex marriage is a contentious issue among originalists, with recognizably originalist arguments on both sides of the question. It's certainly possible that the originalist arguments in favor of a right to same-sex marriage are not as strong as those on the other side (we don't try to address that issue in our exchange). But whether the arguments are ultimately correct or not, they are pretty clearly originalist. And Larry seems to suggest that both sides in the debate have serious and plausible arguments. Finally, he also emphasizes that "Somin is surely correct that the applications of a constitutional provision can change over time if our underlying beliefs about facts change. This is fully consistent with the core originalist belief that communicative content is fixed." That, of course, is one of the main points undergirding my position on this issue.
UPDATE #2: I have fixed the broken link to Michael Rappaport's essay on original meaning and original expected applications.