Principled, Not Conservative: Changing my Mind on Constitutional Originalism as it Relates to Same-Sex Marriage
Last year, I authored a piece for this very journal of opinion entitled “Where Activism Ought to Stop". My thesis in that piece was that our written Constitution remains supreme law only if Justices choose to ascertain the text’s meaning and apply the language dispassionately to legal issues. My thesis stands in contrast to other interpretive modes, some of which are pragmatic in nature, others cynical inasmuch they think the Constitution’s text says little to nothing of help in solving modern issues. In short, I endorsed the most widely accepted definition of constitutional originalism.
Today, I stand by this basic opinion, perhaps even more stringently than before; however, I think I erred seriously in concluding—alongside the late Justice Antonin Scalia who wrote a dissenting opinion in Obergefell v. Hodges (the gay marriage case of 2015) that constitutional originalism mandates a rejection of the Supreme Court’s majority opinion legalizing gay marriage across the United States. Instead of being embarrassed about, or reluctant to abandon, my previous opinion on the matter, I am excited to embrace a better version of constitutional originalism for two reasons: first, I have always supported immediate legal recognition of same sex marriage, so it is intellectually soothing that my jurisprudential outlook bolsters that opinion. Second, I feel my reformed view of constitutional originalism is more defensible from an academic standpoint; that is, further reading of constitutional law literature leads me to believe that Scalia’s dissent deserves critique from constitutional originalists.
In this piece, I’d like to lay out some of the reasons for changing my mind on the Court’s decision in Obergefell. In short, I believe sentiments found in Federalist No. 78, the intellectual underpinning of the Declaration of Independence, and eventually in the adoption of the Fourteenth Amendment, particularly in the Privileges and Immunities Clause, gives one more than ample reason to embrace the long overdue ruling in Obergefell. In closing out this piece, I’ll bring up one caveat to embracing the court’s holdings that will show how societal progress and a disciplined reading of the Constitution’s text need not be mutually exclusive.
Federalist No. 78 mainly addresses the role of the Judiciary in the new republican government. In it, Hamilton ensures skeptics that the judiciary is benign vis-à-vis liberty in comparison with the other branches of government, and that only an illegitimate “teaming up” of two branches has the potential to harm liberty. Federalist No. 78 is famous for stating that the judiciary has “neither FORCE nor WILL, but merely judgement,” but I am more interested here in a couple of lines towards the end of the paper that receive relatively less attention. In reiterating the importance of lifetime tenure for judges practicing good behavior, Hamilton notes the tendency of “ill humors” to “sometimes disseminate…and have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community” (italics mine). He continues by pointing out that the judiciary’s role in enforcing Constitutional mandates may displease those with “sinister expectations”; the “virtuous and disinterested” will surely recognize the indispensable function the majority-checking judiciary plays. As Madison tells us, “no man can be sure that he may not be to-morrow the victim of a spirit of injustice, by which he may be a gainer to-day.”
What can we conclude from the above statements? First, it is important to note that the Federalist papers are not legally binding documents in the technical sense; they are documents that shed light on the context in which the legally binding Constitution was ratified. All this means is that one should not look at the above quotations and conclude that that Federalist No. 78 is a (legal) recourse for action anytime one deems minority rights to be in jeopardy. Rather, Federalist No. 78 is a sort of theoretical lens with which to look at subsequent binding legislation. This lens allows one to be at least skeptical of legislation that significantly burdens a minority party. Further, Federalist No. 78 lends credence to a Supreme Court that dutifully protects minority rights, even when such rulings frustrate a zealous majority. And who better to stand up to this zealous majority than those appointed for life?
A keen observer may notice that Federalist No. 78’s warning concerning the tendency of impassioned majorities toward tyrannical behavior is echoed by the Declaration of Independence, albeit more poetically: “We hold these truths to be self-evident that all men are created equal, that they are endowed by their Creator with certain unalienable Rights…” This beautiful and oft-quoted line carries serious consequences for legal philosophy: these natural rights that belong to every man could not be relinquished even if he wanted it to be so. It goes without saying that a majority would not be able to vote these fundamental natural rights out of existence by virtue of numerical supremacy. (Surely a brief parenthetical cannot do the topic justice, but one does not read the above quotation without being struck by the hypocrisy of positing robust natural rights on the one hand, while allowing slavery to persist for years after on the other.) Moral blind spot aside, the modern conception of democracy that values transparency and the voice of the People stands in conflict with the Declaration’s mission statement. Put simply, the People are free to govern themselves so long as those natural, inviolable rights remain so. Is this chafing point the mark of a confused system? Perhaps to the purist, but if the goal is to secure liberty (which it was), and statesmen are worried about factional tyranny (which they were), then a blunted democracy of some form is an inevitable byproduct.
I hope to have provided these accounts of Federalist No. 78 and the Declaration such that one may see how a philosophical orientation with a critical eye towards overzealous majorities undergirds our system of government and should color the way in which we respond to legally binding acts. With our two accounts of these founding-era documents in mind, what’s to be said about same-sex marriage? Does this discussion not go some way in establishing a case for same-sex bans as having been always illegal in some sense? The answer must be “no” unless we view these documents in light of the Fourteenth Amendment to the US Constitution.
The Constitution in its original ratified form was essentially a list of negative rights retained by the people, meaning the document barred the government from doing a whole host of things. A negative right stands in contrast to a positive right insofar as the latter is bestowed upon a person or a people by the government (Think of various entitlement programs’ goods and services as examples of positive rights, which stand in contrast to the negative right to be free from cruel and unusual punishment). Unethical though it may have been at the time of the founding, nothing in the original document declares that the states were not within their jurisdiction to define and treat marriage as they saw fit (Note that the document’s silence on marriage left open the possibility for the government to abstain entirely from involving itself in legal recognition of marriage, an alternative this author laments was not taken).
Thankfully, one cannot deny that same-sex couples had gained legal recourse in the face of discriminatory treatment upon the ratification of the Fourteenth Amendment to the U.S. Constitution in 1868, which reads:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
It is the Privileges and Immunities Clause, underlined here in the Fourteenth Amendment, that made further disparate treatment of homo- and heterosexual couples unconstitutional beginning in 1868. One can read “privilege” as some particular advantage or right, and “immunities” as a kind of universalized freedom. In his article, “Originalism and Same Sex Marriage”, Constitutional law scholar Steven Calabresi succinctly summarizes the primary objective of the Privileges and Immunities Clause as the eradication of caste & class-based legislation. The amicus brief which he and Iyla Shapiro filed for the Obergefell v. Hodges case argues that if a legislative act can be shown to treat one class of persons differently based on characteristics such as sex or race, Privileges and Immunities is more than likely implicated. This theory of the Privileges and Immunities Clause is rather straightforward but receives pushback from scholars whose flavor of originalism demands that one ascertain the exact intentions of the founders at the time of ratification. This very analysis is what led me to wrongly conclude in last year’s piece that same-sex marriage is entirely outside the purview of the Supreme Court’s jurisdiction. A careful reading of the Privileges and Immunities Clause, however, assures one that the right to be free of class-based state legislation is broad indeed.
I find it hard to overstate the importance of this Clause, and reading the scholarship surrounding the Fourteenth Amendment was most formative in my change of opinion. In 2015 the Supreme Court in Obergefell v. Hodges failed to apply the Privileges and Immunities Clause to the issue, instead relying somewhat awkwardly on a theory of “substantive due process” though that phrase is simply not found in the text of the Fourteenth Amendment. Applying the Privileges and Immunities Clause would have been a more appropriate approach for the Supreme Court to take, since disparate treatment among sexual identities falls squarely within the class-based protection that the clause guarantees. My point here is simply to point out that, as a constitutional originalist, it is possible to arrive at progressive outcomes without warping the text of the document. As a rule of thumb, one should aim to bring about just results via the judiciary without unnecessarily harming the integrity of the text. Though I wish the original document had simply barred the disparate treatment of hetero- and homosexual couples from the outset, no such protection is found after a principled reading of the text. In reading the text with the originalist methodology, we leave intact the safeguards against the government’s ability to abridge our natural rights. What need not stay intact are one’s opinions, and I am glad I amended mine on this important issue.
(Overhead picture: Taken on the day of the Obergefell v. Hodges decision. Credit: Michael Key for the Washington Blade.)