Orin Kerr:
Larry Solum and Ilya Somin have authored generous responses to my recent post on whether there is an originalist case for a right to same-sex marriage. Here’s my reply, first to Larry Solum and then to Ilya Somin.
1) Larry Solum’s response is focused on my first caveat, the definition of originalism. In addressing whether there is an originalist argument for same-sex marriage, I used a definition of originalism that is a sort of constitutional Turing test: I looked for evidence that the originalist argument is different from non-originalist arguments for the same result. Solum has a different definition. To Larry, originalism is “a theory term, the meaning of which depends on either stipulated definitions or consistent usage among constitutional theorists.” So Larry offers a definition of orginalism that reflects what the theorists say. Originalism is difficult to define, he explains, but most academic theories of originalism “cluster around two core ideas, fixation and constraint”
The Fixation Thesis: The communicative content of each constitutional provision is fixed at the time the provision is framed and ratified.
The Constraint Principle: Constitutional practice (e.g., the decision of cases and the articulation of doctrine) should be constrained by the fixed communicative content of the text.Almost every originalist accepts some version of these two principles, but originalists differ about just how constraining the text should be. At a minimum originalists believe that constitutional practice must be consistent with original meaning: that requires that no proposition of constitutional doctrine contradict the text and that every provision of the text be fairly reflected in constitutional doctrine. A maximalist version of the constraint principle would require that each and every proposition of constitutional doctrine be fairly traceable to the text.
Originalism is a family of constitutional theories that accept fixation and at a minimum the consistency version of constraint[.]
Using that definition, Larry notes, there are indeed some originalist arguments for a right to same-sex marriage. And under Larry’s definition of originalism, that seems surely true.
I appreciate Larry’s careful and thoughtful contribution. And at some level, definitions are just definitions. With that said, I find Solum’s definition less useful than mine for the purposes of my post.
Here’s why. The power and influence of originalism — and thus the reason people care whether there is an originalist argument for same-sex marriage — is not connected to how theorists use the term originalism. People care about whether there is an originalist case for same-sex marriage because originalism has developed a significant following within the broader political and legal community. It’s a frequent topic of Supreme Courtconfirmation hearings; it’s the subject of speeches by leading politicians; and it’s even something that major political movements in the United States sometimes take on as part of their platforms. Polling indicates thatmembers of the public have an opinion about it, too.
These judges, politicians, activists, and members of the public have a conception of what originalism means. So if we’re going to ask whether there is an originalist argument for same-sex marriage, I think it’s helpful to stay at least somewhat connected to the public understanding of the term. That’s what I was trying to achieve with my Turing test approach. In the broader political and legal community, originalism is considered powerful and important because it can constrain judges in ways that other theories don’t. It’s thought to make a difference as to how judges decide cases. So my Turing test asks whether the originalist arguments for same-sex marriage are distinct from the other arguments in favor of same-sex marriage. It’s designed to assess whether there is an originalist argument for same-sex marriage in a sense that participants in the public debate over originalism would recognize.
Larry’s contrasting definition fairly and helpfully describes what academic theorists do and say. But I fear it does so by making the answer to whether there are originalist arguments for same-sex marriage pretty much irrelevant to most people. If we accept the full range of what today’s theorists say, it no longer makes sense to ask whether there is an originalist argument for a position. There are now originalist arguments for everything. For example, let’s say I claim that the Third Amendment establishes that the Supreme Court must consult a Black Sable ferret named Sarah before deciding any cases. According to Larry’s definition, there is indeed an orginalist argument that the Supreme Court must consult a Black Sable ferret named Sarah before deciding any cases. It’s the argument I just mentioned, that this meaning was adopted by the Third Amendment. Maybe that’s a bad originalist argument, but it satisfies the Fixation Thesis and the Constraint Principle.
We could define terms that way. But given the public audience interested in originalism, I think it’s more helpful to stick to a meaning closer to the ballpark of that public understanding.
2) Now on to Ilya Somin’s comments. As I noted in my post, and Ilya agreed, the purportedly originalist arguments for a constitutional right to same-sex marriage work in two steps: “(A) assert that the Fourteenth Amendment adopts a broad principle, and then (B) argue that same-sex marriage laws violate that principle.” In my post, I argued that the arguments aren’t providing enough evidence at step (A), in that they have not established that the broad principle alleged to be adopted at the time of the Fourteenth Amendment was actually contemplated by the public meaning at or near the level of generality asserted.
In his reply, Ilya spends the majority of his response on step (B). Ilya argues that there are originalist arguments for (B) because we can answer (B) with respect to modern understandings of the principle instead of original expected applications of the principle. To be clear, though, my argument was about (A) rather than (B). I realize the disagreement among originalists as to how to answer (B), but I think the bigger problem here is step (A).
