Monday, February 09, 2015

Originalist Defenses of Overturning Same-Sex Marriage Bans: Really?


By Eric Segall

It is official. We are all originalists now, and interestingly, at the same time, there are no real originalists left. I know this because a number of prominent originalists have suggested that the 14th Amendment, as originally understood, prohibits bans on same-sex marriage. If that is true, originalism can mean anything and everything.

First, let's start with two famous folks who strongly self-identify as originalists but don't believe or haven't yet said that gays and lesbians have a right to marry (each other). I have already provided substantial evidence in this essay that neither Justice Scalia nor Justice Thomas take originalism seriously (at least when deciding cases) as there are huge swaths of constitutional law through which they have both rammed through a robust and living Constitution. No other Justice on the Court comes close to qualifying as an originalist.

What about people not on the Court? Robert Bork is dead. Ed Meese no longer says much. Libertarian Randy Barnett and liberal Jack Balkin both self-identify as originalists but Randy advocates the type of strong “judicial engagement” approach to constitutional law that would cause Alexander Hamilton to roll over in his grave. Jack thinks Roe can be justified on an originalist basis and Randy is sympathetic to that thesis, which one would think would disqualify them both from the originalist mantle.

If you need more proof, the rather startling title of Jack’s book, “Living Originalism" gives the game away. As Mike pointed out a few years ago, this new brand of originalism articulated by two of our most prominent constitutional scholars provides conservatives and libertarians the benefits of pointing to a famous liberal (Jack) they claim has adopted their approach (exactly what Randy did here), while at the same time allowing them to reach virtually any result they want to (like the 14th Amendment as originally understood gives women the right to terminate their pregnancies). 

I have said to both Randy and Jack that their approaches have little to do with any serious originalist perspective when it comes to hard cases and both responded (at different times) that their originalism is not necessarily for judges but for the populace at large. Ok, fine, their originalism has little to do with judges. Maybe they are originalists “outside the courts,” and Professor Tushnet has won after all.

When most people talk about originalism, they really are concerned with how judges decide hard cases not resolved by clear text. Over the last few weeks, a number of academics have indeed argued that there is a reasonable argument that same-sex marriage bans can be overturned (by judges) on an originalist basis.

How is it possible for a true originalist to argue that the people of 1868 who ratified the 14th Amendment believed that gays and lesbians had a right to get married when no one alive back then actually thought that (maybe not even one single person)? The answer is that many originalists don’t care about what people in 1868 thought were the specific applications of the constitutional text they adopted. What matters are the broad principles they were expounding. So, Steven Calabresi, Ilya Somin, and Michael Ramsey have all suggested that originalists can give their blessing to the inevitable June decision by Justice Kennedy striking down same-sex marriage bans nationwide (though I bet there will be an “originalist” dissent from you know who). 

I don’t have to write an original response to these arguments because Orin Kerr already has said most of what needs to be said and I am trying to make a more general point. Orin responded as follows:
As far as I can tell, there is no serious originalist case for a right to same-sex marriage….what are being described as originalist arguments may just be products of the Level of Generality Game with the word “originalist” tacked on. Most students of constitutional law will be familiar with the Level of Generality Game, as it’s a common way to argue for counterintuitive outcomes. The basic idea is that any legal rule can be understood as a specific application of a set of broad principles. If you need to argue that a particular practice is unconstitutional, but the text and/or history are against you, the standard move is to raise the level of generality. 
Orin is quite obviously right. Professor Calabresi spends eight pages of a seventeen page article on pre-1800 notions of equality. He then devotes most of the next nine pages to inalienable rights and gender discrimination and only gets to sexual orientation discrimination on page sixteen (of seventeen remember). This is almost all manipulation of the level of generality (at a high level) with a brief nod to the facts at the end.

I could have saved him the trouble. To arrive at a broad enough notion of equality to justify overturning bans on same-sex marriage we don’t need a history lesson going back to 1641 (yes that is where he starts). Just read the text. Are gays and lesbians “persons,” and are they being denied the “equal protection of the laws?” Yes and yes. Does the government have a strong reason (or even a rational) reason for treating them differently? No.

There are a few relative newcomers on the originalism block like Will Baude and Stephen Sachs. The latter has written a complex and provocative article, which I think the former likes. Professor Sachs argues that originalism is not a theory of interpretation but of positive law that posits that “law, whatever it is, stays the same until it’s lawfully changed.” What originalism “requires of legal change is that it be, well, legal; that it be lawful, that it be done according to law.”

I can’t do justice to this piece here but it does turn out that what is “law” turns out to be an issue reasonable people can disagree about so this theory is broad enough to encompass strong and weak judicial review, varying theories about levels of generality, and even differing views on whether the founding fathers themselves believed in originalism as a theory of interpretation. In fact, according to Professor Sachs, originalism says nothing about interpretation and once again we have left the world of judges and judging.

Ilya Somin made two interesting arguments (in a series of emails to me) on the topic. First, he said that originalists have won an important battle because these days more and more people are jumping on the originalist bandwagon (even if there are good, better, and best applications of the doctrine). I am pretty sure Lawrence Solum of Georgetown, a noted originalist observer but not necessarily an originalist himself, agrees, as does Michael Ramsey who wrote recently that “I think it is a win for originalism that everyone (it almost seems) wants to speak its language and invoke its arguments, even if they do so poorly or implausibly.”

I would venture to say that when academics like Jack Balkin, Randy Barnett, and Steven Calabresi make “implausible” originalist arguments, and when other smart folks drain originalism of most interpretive and normative force, it is a hollow victory for those who believe that originalism means judges should follow the principles embraced by the people who ratified the text that is at issue. If it is possible for people to earn the label "originalist" by identifying broad principles like equality, liberty, fairness, and protection of speech, and then apply apply those vague aspirations according to modern norms to reach results that would have shocked the ratifiers, then they are definitely embracing what Balkin calls "living originalism." I am perfectly okay with that moniker as a description of these folks but I am pretty sure most self-identifying originalists would protest (perhaps too much).

Finally, when I argued to Ilya that under this pick-a-broad-principle-and-apply-modern-norms approach there are no "living Constitution" decisions that can’t be justified on an originalist basis, he responded that Roe and Lawrence and other usual targets of originalists were not written in an originalist manner nor were the authors of those opinions interested in any originalist analysis. Those are interesting points. But, my instinct is that the use of broad principles coupled with selective use of history (which almost always supports both sides, e.g., Heller), does not solve the real problem which is that, as Professor Sachs says, a sincere originalist can embrace virtually any use of those principles--which is exactly why noted liberal William Eskridge and noted conservatives can agree that same sex-marriage bans can be overturned by judges based on “originalism.” Since no one living in 1868 ever thought that could be true, I have no idea what that means other than we are all originalists now or none of us are. The difference won’t matter to the results judges reach (or likely to anyone outside academia) one bit.

28 comments:

Joe said...

"judges should follow the principles embraced by the people who ratified the text that is at issue"

I am not an "originalist" and find the concept problematic on various grounds. This includes how much it "restrains," which is usually a major concern here.

A problem being that maybe the "originalist" view was that such restraint (that is, the sort "originaists" prefer; I resist the idea other paths don't "restrain" in various ways) was not how things were understood.

But, what 'principles' are we talking about here? The point is made that at a certain level of generality originalism is in effect silly. Okay. But, what level is okay then?

What about interracial marriage? This was largely understood as not protected. In fact, many thought social rights such as marriage was not even part of what "equal protection" here was understood to cover. Is Loving v. VA originalist?

Many think not, okay, but let's be consistent. Why is SSM the tipping point? If equal protection is the "principle" and it in some fashion applies to sex (e.g., women even in 1872 could petition the government; they were after all a major part of the anti-slavery movement), what is the absurdity here?

The fact people in 1868 would find SSM absurd? But, a major issue there is that facts have changed, our knowledge of homosexuality alone is quite different. What "principle" of equality and anti-caste philosophy, given current knowledge, simply cannot be applied to protect SSM?

As compared to interracial marriage? Again, I'm not a big fan of originalism, which has always been muddled in part since people simply didn't want to apply a pure form of it. But, given a range of things allegedly allowed under it, why SSM is suddenly supposed to be the "really" moment is unclear.

Eric Segall said...

I am not an originalist at all. I have written at length that deference should be the guiding principle for judges in constitutional cases.I was just describing originalism in its new form in this piece.

Shag from Brookline said...

I have sifted through Eric's post in the manner of the AEI's approach to Obamacare looking for potential flaws and came up with this:

"I am pretty sure Lawrence Solum of Georgetown, a noted originalist observer but not necessarily an originalist himself, llll."

Frankly, Solum is much more than an observer. He recently critiqued editorially a critical review of McGinnis and Rappaport's recent book on originalism. However, Solum was not critical of an earlier review of the same book by Kurt Lash, even recommending Lash's review. Also, Solum jumped into the "fray" between VCers Kerr and Somin on SSM and originalism, in a somewhat "neurtral" sense to explain what is originalism as in his view neith Kerr nor Somin are originalists. But originalism is somewhat sort of like religion in that there are many versions, including evolving ones surfacing from time to time. Yet when originalism is attacked from outside, originalists seem to circle the wagons, as Solum seems to have. Solum has a recent article on originalism that fixates on the "Fixation" approach of originalism. I have read only the abstract at this point but do plan to read the article in the near future. Before Solum's post on his article, Solum had posted on an article focusing on three different kinds of "intention" involved with statutes enacted, for which Solum provided his "Highly Recommended, Download it While it's Hot!" That article challenges the "Fixation" approach of originalism that Solum favors.

The above aside, Eric points to problems with originalism. Sachs's efforts to take originalism away from legal theory can be confusing. We have been told, too often, that it takes a theory to beat a theory. With originalism, theories are beating up on theories. So perhaps Sachs is trying to shift away from this by proclaiming originalism as positive law (at least as construed by Eric). But this turns on its head the concept of positive law, which I understand to mean laws adopted by governments. What government adopted originalism?

Paul Scott said...

In truth are not words such as "originalist/ism", "judicial restraint" "pragmatist/ism" and "living constitution" nothing more than code words describing the more or less partisan leanings of the judges, transforming the raw political terms that the public might find distasteful into equivalent, but palatable, terms?

Has it ever really been anything other than that?

egarber said...

I suspect that this trend makes strict constructionism the new "original" originalism in a way -- i.e., "since everybody calls themselves an originalist now, maybe narrow construction is the better way to set us old-schoolers apart."

As an aside, this makes me wonder about the practical differences between strict constructionists and originalists. I understand that they aren't the same thing, but do they ever result in different outcomes?

Joe said...

The title singles out SSM and notes "really?" It didn't come "official" now or something. It is more that -- like dealing with Brown/Loving -- a new form of discrimination is no longer in good taste.

As to the suggest originalism is just cover, there is something to that. I'll be fair & try to see some independent core here. One overall approach is to try to use original understanding and try to figure how it would apply given current facts and such.

So, that is cited by Stevens in Heller or O'Connor (regarding free exercise) in Boerne. It is a different approach than others in practice to some degree.

In practice, this is likely to be a weaker form of originalism but even Scalia and Thomas realizes they have to deal with other stuff, so "pure" originalism is not possible. So, they try as close as possible.

This doesn't make the effort worth it, but it does to me seem as not just to be blunt b.s.

Shag from Brookline said...

Query: Was CJ Taney serving as an originalist with his Dred Scott opinion? Or can we expect current versions of originalism to vigorously deny this because of the ignominy of Dred Scott?

Shag from Brookline said...

Query: Does Justice Thomas' dissent (joined in by Justice Scalia) on the Court's order not halting SSMs in Alabama address the role of originalism in the SSM case pending before the Court? Or was the Court's order aimed at Chief Judge Roy Moore?

Joe said...

Taney and Lincoln (especially his Cooper Union speech) both appealed to originalism & got to very different places.

Unknown said...

@Joe: I think Justice Scalia advocates a much more intelligible approach, namely "original meaning", which means, "What did the words and phrases used in the particular provisions mean at the time they were adopted by the People adopting them. In that sense, not only was Loving decided correctly but Plessy was decided incorrectly, which means America could have avoided much "Jim Crow" legislation and the principles articulated in Brown could have become the law of the land decades sooner. I know Many like to conflate "original meaning" with "original intent" and lump them together in one great big ball called "originalism" but it's simply not accurate.

In light of this perspective, I think Eric presents a wonderful "original meaning" argument in the paragraph talking about "saving some time". I would not be surprised in Scalia were to actually write the majority opinion in favor of SSM/MarriageEquality, whichever term One prefers, as a result.

Eric Segall said...

"I think Eric presents a wonderful "original meaning" argument in the paragraph talking about "saving some time". I would not be surprised in Scalia were to actually write the majority opinion in favor of SSM/MarriageEquality, whichever term One prefers, as a result."

Only if hell freezes over first.

Unknown said...

@Eric: Scalia has surprised Us before. Case in point, Texas v. Johnson, Maryland v. King, Hamdi v. Rumsfeld, Reno v. ACLU, and the GPS case.

Joe said...

@Unknown. The meaning of "originalism" is a matter of deep debate, including among those who claim to practice it, and I'm surely not trying to provide one set def.

I don't know how useful "meaning" is here since said meaning "at the time" would to me involve determining how words and phrases were "understood." The two things to me are pretty connected.

If we just look at the words and phrases, I'm sure SSM can be reasonably shown to be "originalist," which is sort of my basic point here.

Scalia hasn't shown evidence of thinking so but as in other cases his basic logic can hang him by his own petard.

Unknown said...

@Joe: I'm going with what J. Scalia articulated during His confirmation hearings, since He appears to have been the Originator of the "original meaning" philosophy or, at the least, appears to have been the One popularizing it.

Shag from Brookline said...

Is Unknown canonizing a "Jesus" quality on Justice Scalia with his capitalizations in his last comment? The late Robert Bork may be turning over in his grave with Unknown's Originator claim for Scalia. As to Unknown's alternative of Scalia as the One popularizing original meaning, consider that at least on the Court that popularizing has extended only to Justice Thomas.

As Eric suggests in responding to Unknown's suggestion that Scalia might write the opinion in support of SSM:

"Only if hell freezes over first."

(Query: Might that event counter global warming?)

Those interested in the popularizing of originalism should take a look at Donald L. Drakeman's "What's the Point of Originalism?" which analyzes a 2012 "public" poll on how the Court(s) should interpret the Constitution. The article also provides a good background on originalism. I anticipate that the poll may be challenged. It should be kept in mind that there were 1,000 poll respondents. One of the points made in the article is the public relations aspects of a decision by the Court in getting the public to accept a decision.

Evan Bernick said...

Originalism holds that (1) the linguistic meaning of the Constitution was fixed when each provision was framed and ratified; (2) that meaning should be regarded as legally binding. We are not bound to anyone’s subjective understanding of the meaning of its provisions or how those provisions applied to any particular set of facts. Concepts like "speech," "equal protection of the laws," "unreasonable searches and seizures," etc. are open-ended—they refer to an indefinite number of things that share certain distinguishing characteristics. Thus, “speech” encompasses violent video games, even if no one who framed/ratified the First Amendment could have imagined such things.

If the concepts set forth in the Fourteenth Amendment are rightly understood as barring arbitrary discrimination against particular classes of citizens, the question for the originalist is whether banning same-sex marriage constitutes such discrimination, on the basis of the presently-available state of knowledge. If the answer is "yes," then a serious originalist case can be made that such bans violate the Fourteenth Amendment. And it is a distinctively originalist case, insofar as we're actually applying concepts set forth in the text of the written law, as distinct from principles that we think are good, true, and beautiful. Even if we get to the same place in a particular case.

Eric Segall said...

Evan says: "And it is a distinctively originalist case, insofar as we're actually applying concepts set forth in the text of the written law, as distinct from principles that we think are good, true, and beautiful. Even if we get to the same place in a particular case." Liberty was definitely a concept in original Constitution and as amended by 14th. If modern norms says women have a liberty to a) terminate pregnancies; b) not vaccinate their children, or 3) rent their basements to tenants, under your "originalist" analysis all three rights can't be abridged (absent compelling interest).This is the Living Constitution b/c liberty quite obviously evolves and devolves with the times.

Evan Bernick said...

"Liberty was definitely a concept in original Constitution and as amended by 14th."

Yes, and the concept of liberty was fixed at the time of enactment. What changes, as new facts arise, are the referents of that concept. As in the speech example-- violent videogames, unimaginable to the Framers. Doesn't matter. They share the essential characteristics of speech. They are a form of speech and thus protected.


"If modern norms says women have a liberty to a) terminate pregnancies; b) not vaccinate their children, or 3) rent their basements to tenants, under your "originalist" analysis all three rights can't be abridged (absent compelling interest).This is the Living Constitution b/c liberty quite obviously evolves and devolves with the times."

That doesn't follow. Each and every one of those examples needs to be evaluated to determine whether it falls within the scope of the original concept of "liberty." New facts can arise, and we take them into account in assessing whether some hitherto unimaginable claim to freedom of action qualifies as constitutionally protected liberty. But that's different from saying that "modern norms" can change the essential meaning of the concept. Liberty-- the freedom to act without interference so long as one does not harm others or their property-- remains the same.

The word “gay” offers a good example of what is and what isn't possible on this account. There was a time when "gay" did not denote "homosexual." It referred to a different concept entirely than it does in contemporary discourse. We couldn't coherently argue that “gay” should be understood as “homosexual” in 19th century documents.

An originalist who holds to the same concept and considers new fact patterns in light of that concept may end up in precisely the same place as a living constitutionalist who believes that the concepts themselves must be defined and redefined by every generation of the living, concerning a given issue. But the account of language is different, the methodological approach to a given set of facts is different, and the result will often be different as well.

You write: "(m)y instinct is that the use of broad principles coupled with selective use of history (which almost always supports both sides, e.g., Heller), does not solve the real problem which is that, as Professor Sachs says, a sincere originalist can embrace virtually any use of those principles--which is exactly why noted liberal William Eskridge and noted conservatives can agree that same sex-marriage bans can be overturned by judges based on “originalism.

Sure, they can. But broad doesn't mean limitless, and an originalist would (hopefully) be taken to task for approaching the interpretive enterprise as if he had in his possession principles that were infinitely malleable and could be made to do anything. The legitimacy of an interpretive method doesn't turn upon it being practiced flawlessly by everyone who sincerely adopts it, and the fact that words can be stacked up on both sides of a proposition doesn't mean that both cases are equally compelling.

Eric Segall said...

The "Living Constitutionalist" does not make principles out of whole cloth. Privacy is in the Constitution in many places. In fact, Griswold is much more faithful to text than Seminole Tribe or Printz. And, if we take 9th Amendment seriously...well you know. One thing and only one thing limits judicial discretion (other than elections), and that is strong burdens of proof, or, in other words, deference.

Evan Bernick said...

Well, you could eliminate judicial discretion entirely by eliminating judicial review. Too much deference, and you'll do the same. Assuming we think that judicial review is a good thing because legislators don't always restrain themselves and can't be trusted to respect individual rights, the priority shouldn't be constraining judges, full stop, but getting judges to hold the political branches accountable to the Constitution's terms. Yeah, consistent adherence to "original expectations" originalism would constrain judges more than an originalist approach that regards concepts as having fixed meaning but being open-ended (no closed set of referents), but it would so at the price of fidelity to the actual content of the Constitution, and the purpose that it's designed to serve.

egarber said...

For prof Segall,

Do you not think the various levels of scrutiny - substantive due process, equal protection - serve the purpose of respecting deference? For things that aren't fundamental or suspect, rational scrutiny gives legislatures a lot of authority. To the extent the line crosses to intermediate or strict, the state faces a higher bar. It is a pretty clean rule, in principle at least.

I'm struggling to see why we should err in favor of state power on both sides of the line, which seems to be your position.

Even if the line is drawn imperfectly, isn't that still a better way to uphold the balance required in a system of ordered liberty? Democracies though majoritarianism aren't immune to tyrannical behavior; we're seeing that right now in the aftermath of our efforts to "liberate" the Middle East.

Unknown said...

@Shag from Brookline: Hardly. I capitalize all nouns and pronouns referring to Living Beings. J. Scalia just happens to be the Referent.

Unknown said...

@Evan Bernick: My understanding is judicial review is inherent in the courts, according to Marbury v. Madison.

Eric Segall said...

Many of the comments suggest courts will be better at protecting liberty than legislatures. I think it depends on whose liberty we are talking about. The rich and powerful, sure, the poor and powerlessness, not so much. This is clearly true at the federal law (Congress much better at protecting minorities than Supreme Court). Not sure about state level. But make no mistake, over time, the Supreme Court protects that values of the Justices, not the Constitution, and they do it for life.

Joe said...

Courts have a certain role & they protect certain liberties (particularly procedural matters that are generally traditionally of special concern for courts).

Prof. Segall overcompensates, but given the power of the courts, he helps to keep things in perspective. The truth as usual is more in the middle though.

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