Restoring the Role of Substantive Due Process in the Gay Marriage Debate

The Conservative Case for Obergefell v. Hodges with Small Comments on Meta-Textualism in Fourteenth Amendment Jurisprudence

The fourteenth amendment’s ratification in 1868 drastically changed federalism in the United States [1,2]. Prior to 1868, most American jurists thought that the union was a confederation of sovereign states [3]. Under this theory, each state was given full discretion to exercise broad power to regulate issues affecting its citizens’ health, safety, and morals [4]. Only restrictions contained in a state’s constitution and the few obscure limits on state power in the national constitution could limit this power [5]. Indeed, as Chief Justice Marshall declared in Barron v. Baltimore (1831), a case in which the Supreme Court declined to apply the Fifth Amendment’s just compensation clause to the states, “each state established a constitution for itself, and, in that constitution, provided such limitations and restrictions on the powers of its particular government as its judgement dictated. The people of the United States framed a government for [the union]…and limitations on [the union’s] power if expressed in general terms are naturally, and, we think, necessarily [only] applicable to the government created by the instrument.” [6]

The fourteenth amendment’s privileges and immunities clause (PIC), due process clause (DPC), and equal protection clause (EPC) changed all of this. [7] Each provision gave Congress, federal courts, and state courts a mechanism in the national constitution to check the states’ abuse of their legislative power. Justice Samuel Miller’s preliminary comments on the fourteenth amendment’s purpose in The Slaughterhouse Cases (1873) was typical of the era: “there can be little doubt that the purpose of…these provisions are the same” securing “civil rights” against the states. [8]

Unfortunately, the amendment’s text provides almost no direction on the question of what constitutes ‘abuse.’ Indeed, the relevant portion, section one, reads:     

“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 [emphasis added].” [9]

Currently, all of the legal academy’s respected members agree that the EPC was originally intended to prohibit a limited set of measures that discriminate on the basis of race. [10] However, the disagreement begins beyond that point and becomes very significance when one analyzes the Supreme Court’s recent ruling in Obergefell v. Hodges, a case in which the Court held that the fourteenth amendment’s EPC and DPC required all states to recognize same-sex marriages licensed out-of-state.

On one hand, most conservative legal scholars argue that the only legitimate way to interpret the EPC is to adhere closely to the clause’s original public meaning, or the American public’s understanding of the EPC’s implications when it was ratified. [11] As far as the EPC is concerned, conservatives deny that the provision prohibits same-sex marriage bans because in 1868 no one believed that the EPC would have this effect. [12]   

On the other hand, Brett Parker and most liberal scholars reject the originalist theory because they feel that it does not provide enough room to accommodate change. [13] Most liberal jurists maintain that moral philosophy should inform current readings of the EPC in order to prohibit discrimination on the basis of a wide variety of characteristics that are now seen as irrelevant. This list of characteristics includes, but is not limited to, traits such as religion, gender, physical/mental disability, and sexual orientation. [14] In general, liberals support this method because they argue that it produces the most faithful interpretations of the constitution’s text and promotes just outcomes. [15] These scholars point out that there is substantial evidence suggesting that the constitution’s framers did not want future generations to foolishly stick to past understandings of the constitution. [16] Liberals also maintain that the term “equal protection of the laws” is purposefully vague. We are told that this is so because the EPC’s framers wanted to establish a general principle dictating equality, and give future interpreters enough latitude to eliminate new social evils that violated the equality principle. [17] Liberals, with good reason, believe that same-sex marriage bans have now fallen under this odious heading in part because of the negative message these bans convey. [18] For all these reasons, Parker and company insist that laws prohibiting same-sex marriage are unconstitutional because they violate basic equal protection principles by providing a government service to some couples, but denying it to others on the basis of an irrelevant and suspect trait: sexual orientation. This differential state treatment is accentuated by the fact that the scientific community is now in agreement that one cannot choose her or his sexual orientation much in the same way that one may not choose her or his race. As the American Psychological Association has maintained, “Most gay men and lesbians do not experience their sexual orientation as a voluntary choice. In a U.S. national probability (i.e., “representative”) sample of 662 self-identified lesbian, gay, and bisexual adults, only 5% of gay men and 16% of lesbians reported feeling they had “a fair amount” or “a great deal” of choice about their sexual orientation. Fully 88% of gay men and 68% of lesbians reported that they had “no choice at all.” Although some groups and individuals have offered clinical interventions that purport to change sexual orientation from homosexual to heterosexual—sometimes called “conversion” therapies—these interventions have not been shown to be effective or safe. A review of the scientific literature by an APA task force concluded that sexual orientation change efforts are unlikely to succeed and can be harmful.” [19]

However, conservative jurists cannot accept this reading for three reasons. First, they would deny that they prefer an originalist theory solely because the framers did (because they did not). [20] Instead, they support originalism because it improves the executive’s and legislature’s ability to respond to problems. [21] These jurists claim that originalism circumscribes judges’ ability to read their own moral predilections into the constitution and stifle legislative attempts to solve complicated social, economic, and political problems that courts are not well-equipped to resolve. [22] Second, conservatives would insist that the EPC, as part of a larger written legal document, must have some intrinsic and specific meaning contained in its text, history, and/or implementation. [23] The existence of intrinsic meaning is significant because it would prevent the EPC from including every single policy preference an interpreter wishes to assign to it. Under this theory, if we want to speak of the constitution as a legal text, one should not understand the EPC as a carte blanche. [24] Instead, it constitutes a term of art conveying a precise meaning frozen in time and supplemented by past understandings of its implications. Originalism promotes this goal to the extent that it prevents interpreters from manipulating the meaning of the constitution’s text by allowing them to reference open-ended, exogenous materials that jurists do not frequently use when interpreting a legal text (such as contemporary philosophical works). [25]

The lack of evidence on this count, though, does not mean that there is no way to reconcile the Court’s holding in Obergefell with originalism. This is the case because in Obergefell the Court was also asked to decide whether same-sex marriage bans violated the DPC. Therefore, even if the EPC’s historical record cannot support the constitutionality of same-sex marriage, the same result could be reached through an originalist reading of the DPC.

This route has much to recommend itself to proponents of same-sex marriage. Indeed, the logic of the debates in Thirty-Ninth Congress over the DPC and the Supreme Court’s early interpretations of the provision demonstrate that the American public originally understood the DPC as potentially protecting an individual’s civil right to marry whoever they chose subject to reasonable state regulations (bear in mind that what could be seen as reasonable in one era may not be in another). [26]         

This record is corroborated by a long list of Supreme Court precedent that clearly recognizes the right to marry irrespective of the gender of the bride and her (or his) groom as well as a general right to privacy in familial matters. For this article’s purposes, these early precedents are important because they reveal which rights the DPC was originally understood to protect since many individuals who were alive during the Fourteenth Amendment’s ratification had not yet passed away by the 1920s.  For instance, in Meyer v. Nebraska (1923), a case involving a WWI era state ban on the teaching of German to young pupils, the Court declared that the Fourteenth Amendment’s DPC protects the “the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, [and] to marry.” [27] In Pierce v. Society of Sisters (1925), a similar case implicating an Oregon ban on private school attendance, the same Court declared that the DPC protected the right of “parents and guardians had the right to direct the upbringing and education of children under their control.” [28] In the twentieth century, this dual right to marry one’s preferred partner and establish a home in which she could receive a reasonable expectation of privacy was extended to protect the right of married women to use contraception, the right of unmarried women to use contraception, the right to marry an individual regardless of their race, and the right to an abortion, inter alia. [29] Because the right to marry was never defined with specificity that stipulated heterosexual marriage, it follows that these cases can be read to support the notion that the DPC was originally intended to protect the right to marry, broadly defined.

I imagine that my conservative colleagues might retort that this is a gross misreading of the Court’s substantive due process jurisprudence, because the justices were never squarely presented with the issue of gay marriage in any of these controversies (making all of the above quotes dicta at best). Thus, my reading of these cases would contradict my own preference for a method of constitutional interpretation that prioritizes the original public meaning of the document’s text because these references to marriage clearly connoted marriage between a man and a woman.

There are three responses to this argument. First, this reading is not a distortion of the Court’s language because it is a literal one. Under my theory, the right to marry means exactly that: nothing more, nothing less. I presume that if the Court wanted to be more specific they would have spoken about sexual orientation. However, they did not and under the doctrine: expressio unius est exclusio alterius, or the inclusion of one thing is the exclusion of the other, we must presume that they meant what they said. [30] Second, in the common law tradition, courts routinely interpret and re-interpret case law to include dicta as an essential element in a holding. [31] If my critics deemed this acceptable when performed by other English and American judges for the last millennium, they have no right to raise their voices here.

Finally, my reading of these cases does not contradict my preferred method and is distinguished from more liberal interpretive methods because it does not even interpret the words at a level of abstraction. For instance, while the words “equal protection of the laws” certainly do not facially stipulate that courts have to treat discrimination against homosexuals differently from discrimination against African-Americans (Brett Parker’s preferred result after reading the words at a rather abstract level and including historical evidence he deems relevant), I read the right to marry in a straightforward manner without regard for ancillary history. Even if this is a textualist approach, this is not a contradiction of my position above. This result is the case because conservatives and liberals only resort to original meaning or moral philosophy respectively as interpretive aids when the words are ambiguous. Otherwise the clear meaning of the text governs. For example, if any Stanford student were asked to interpret Article II § I clause V of the constitution which states in part that “no person shall be eligible for the office of president who shall not have attained to the age of thirty-five years”, we would stick to the words and would ignore the original public meaning or philosophical dimensions of the phrase in giving it meaning because its implications are clear. The phrase ‘the right to marry’ is clear in the sense that it denotes a prerogative that, like any other substantive right protected by the DPC, may not be regulated without a reasonable goal that is appropriately tailored. Absent any showing that the state is promoting a permissible goal by banning same-sex marriage (and pundits on the right and left have concluded that it does not), this right must be vindicated. One must not forget that my method is a practical interpretive means to vindicate the original meaning of the words and the procedural justice/democratic flexibility that results from this view, not a blind exultation of history.   

So there you have it: an originalist reconciliation with Obergefell albeit with a meta-textual analysis that would make the cleverest common law judge or curious 1L blush. These are only preliminary comments, and I intend to stop here and save a broader theoretical explanation for a longer piece that would be better able to deal with the subject and give it the attention it deserves. But, before I do, I want to anticipate an objection that should be put to rest immediately. This counter-argument would go something like this: “well, I agree with the result, but nonetheless refuse to agree with the approach outlined here because it is intellectually dishonest as conservatives have never read the constitution this way and are simply offering this method in order to save a mode of interpretation that cannot really accommodate the constitutionality of gay marriage just as it cannot accommodate landmark cases that protect racial and gender equality.”

There are two responses to this – one is a general descriptive comment, the other is much more substantive. First, it is odd that I would have to address an argument that actually focuses on interpretative theory and not actual results because most Americans (and Stanford students) simply do not care about interpretative methodology as long as the right result is reached. If you think my cynicism is unjustified, ask your roommate or best-friend about the recent gay marriage case. I am willing to bet that nine times out of ten your partner is likely to have a strong or firm opinion on the constitutionality of gay marriage but will not have nearly as strong an opinion on whether the equal protection and/or due process clause should have been the operative provision that was used to reach the result (assuming they know that both clauses were at play in Obergefell). In a word, most observers only care that the sausage is on the table and could care less how it is made in the kitchen. So, my critics have no right to check the chef’s hands after the fact. [32]

Second, this approach is perfectly consistent with previous conservative interpretations of the fourteenth amendment that have insisted on literal interpretations of the provision’s language. Witness Justice Lewis F. Powell Jr.’s (a Nixon appointee) statement in Regents of the University of California v. Bakke, a case that laid the intellectual framework for race and gender affirmative action in higher education today, “the guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color. If both are not accorded the same protection, then it is not equal.” [33] A more notorious and contemporary example comes from Chief Justice John G. Roberts Jr.’s (a Bush 43 appointee) tautological dicta in Parents Involved In Community Schools v. Seattle School District No. 1, a case in which the Court rejected racial balancing as a compelling interest that could justify integration plans for primary and secondary schools, “the way to stop discriminating on the basis of race is to stop discriminating on the basis of race.” [34] Perhaps this method is a tad myopic, but where the constitution’s commands are clear what should we expect? Thirty-five means Thirty-five. The right to marry, when it is not explicitly qualified by outside language, means the right to marry. Equal protection means equal protection regardless of whether one is black, white, or purple. Those who would tell us otherwise are lying to themselves and doing a disservice to a nation committed to the rule of law predicated on professional legal analysis of the constitution’s text.     

Endnotes

[1] I would like to send a special thanks to Brett Parker, Stephen Paduano, and Nick Obletz. May your leftist shenanigans remind us all of the importance of the nondelegation doctrine, exceptions to Chevron deference, strict scrutiny of regulations on political speech, and circumscribed theories of Article II § I’s vesting clause.  

[2] Of course, for the latter part of the nineteenth century, this shift was only conceptual because of a series of Supreme Court decisions that gutted the 14th amendment’s privileges and immunities clause and to a lesser extent the equal protection clause as well. See The Slaughter-House Cases, 83 U.S. 36 (1873), United States v. Wong Kim**Ark 196 U.S. 649 (1898), Pace v. Alabama, 106 U.S. 583 (1883), and Plessy v. Ferguson 163 U.S. 537 (19896). Compare Barron v. City of Baltimore, 32 U.S. 243 (1833) and Fox v. Ohio 46 U.S. 410 (1847) with Gitlow v. New**York, 268 U.S. 652 (1925). It would take almost a century after the amendment’s ratification for its promises to be realized. See Shelley v. Kraemer, 334 U.S. 1 (1948), Brown v. Board of Education of Topeka I, 347 U.S. 483 (1954). Katzenbach v. McClung, 379 U.S. 294 (1964), and Loving v. Virginia, 388 U.S. 1 (1967). For a more comprehensive account of the amendment’s first lackluster century, see Eric Foner, Reconstruction: America’s Unfinished Revolution, 1863-1877 (New York: Harper & Row, 1989) andMichael J. Klarman, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality (Oxford: Oxford University Press, 2004).  

[3] Resolution of the Legislature of Pennsylvania, April 3, 1809. Resolutions of Virginia Against the Bank of the United States, January 22, 1811. Letter of Governor Caleb Strong to Secretary of War William Eustis, August 5, 1812. Speech of Vermont Governor Thomas Chittenden, October 23, 1813. Message of Georgia Governor Edward Telfair, November 4, 1793. St. George Tucker, Edward Christian, and William Blackstone, Blackstone’s Commentaries: With Notes of Reference to the Constitution and Laws of the Federal Government of the United States, and of the Commonwealth of Virginia Volume One (South Hackensack, N.J.: Rothman Reprints, 1969) 140. Joseph Story, Commentaries On the Constitution of the United States (Durham, N.C.: Carolina Academic Press, 1987) 711.      

[4] Historically the states’ power to regulate these issues was grouped under the heading: police power. See Willson v.**Black-Bird Creek Marsh Co., 27 U.S. 245 (1829),Charles River Bridge v. Warren Bridge (referred to in some circles as the Charles River Bridge Case), 36 U.S. 420 (1837), and Cooley v. Board of Wardens, 53 U.S. 299 (1852). Felix Frankfurter, The Commerce Clause Under Marshall, Taney and Waite (Chicago: Quadrangle Books, 1964). Santiago Legarre, “The Historical Background of the Police Power,” 9 UNIVERSITY OF PENNSYLVANIA JOURNAL OF CONSTITUTIONAL LAW 745 (2007).  

[5] Worst of all, many state bills of right were hortatory in nature and were not enforced by the judiciary. The lack of congruence between state protections and national protections was glaring in the late eighteenth century, but this problem became less of a headache as the 1800s progressed because many territories simply adopted a bill of rights that mirrored the federal version. SeeJack N. Rakove, Declaring Rights: A Brief History with Documents (Boston, MA :Bedford Books, 1998) 191-194. Francis Newton Thorpe, The Federal and State Constitutions Colonial Charters, and Other Organic Laws of the States, Territories, and Colonies Now or Heretofore Forming the United States of America Compiled and Edited Under the Act of Congress of June 30, 1906 (Washington, DC : Government Printing Office, 1909). Article I § X of the United States Constitution prevents the states from passing a law that: creates a foreign alliance, grants a letter of marque and reprisal, coins money, emits a bills of credit, establishes a bills of attainder or ex post facto criminal punishment, impairs the obligation of a contracts, grants a title of nobility, lays any export duties, or incites war. For a brief survey of some of the more notable cases arising under this section, see Calder v. Bull 3 U.S. 386 (1798),United States v. Brown 381 U.S. 437 (1965), Trustees of Dartmouth College v. Woodward 17 U.S. 518 (1817),Sturges v. Crowninshield, 17 U.S. 122 (1819), and Ogden v. Saunders, 25 U.S. 213 (1827).      

[6] 32 U.S. 243. It is important to note that while Marshall’s Barron opinion was full of deterministic rhetoric (a feature that was unique to the writing conventions of Grand Style judges in the early nineteenth century), his structural reading of the bill of rights and Article I § § IX X was not inevitable. Indeed in the early 1830s, state courts in Michigan and Mississippi had applied various provisions in the federal bill of rights against their states.   

[7] See Everson v. Board of Education 330 U.S. 1 (1947), Cantwell v. Connecticut 310 U.S. 296 (1940), Near v.**Minnesota 283 U.S. 697 (1931), De Jonge v. Oregon 299 U.S. 353 (1937), Edwards v. South Carolina 372 U.S. 229 (1963), McDonald v. City of Chicago 561 U.S. 742 (2010), Mapp v. Ohio, 367 U.S. 643 (1961), Aguilar v. Texas, 378 U.S. 108 (1964), Ker v. California, 374 U.S. 23 (1963), Benton v. Maryland, 395 U.S. 784 (1969), Griffin v.**California, 380 U.S. 609 (1965), Malloy v. Hogan, 378 U.S. 1 (1964), Miranda v. Arizona, 348 U.S. 436 (1966), Chicago, Burlington & Quincy Railroad Co. v. City of Chicago, 166 U.S. 226 (1897), Klopfer v. North Carolina, 386 U.S. 213 (1967), In re Oliver, 333 U.S. 257 (1948), Duncan v. Louisiana, 391 U.S. 145 (1968), Pointer v.**Texas, 380 U.S. 400 (1965), Washington v. Texas, 388 U.S. 14 (1967), Powell v. Alabama 287 U.S. 45 (1932), Gideon v. Wainwright, 372 U.S. 335 (1963), Argersinger v. Hamlin, 407 U.S. 25 (1972), Robinson v. California, 370 U.S. 660 (1962). For an individualized treatment of every single clause in the bill of rights (not including the first two provisions that were not ratified in 1791), seeAkhil Reed Amar, The Bill of Rights: Creation and Reconstruction (New Haven: Yale University Press, 1998).

[8] 83 U.S. 36 (1873).

[9] United States Constitution Amendment XIV § I.

[10] Michael W. McConnell, “Originalism and the Desegregation Decisions,” 81 VIRGINIA LAW REVIEW 947 (1995) (The belief that school segregation did in fact violate the Fourteenth Amendment was held during the years immediately following ratification by a substantial majority of political leaders who had supported the Amendment. In a large number of votes over a three and one half year period, between one-half and two-thirds of both houses of Congress voted in favor of school desegregation and against the principle of separate but equal). Randy Barnett, “Whence Comes Section One? The Abolitionist Origins of the Fourteenth Amendment,” 3 JOURNAL OF LEGAL ANALYSIS 165 (2011) (The Fourteenth Amendment is universally presumed to be the outcome of the organized antislavery movement in the United States).Lawrence Tribe, “Rescuing The Fourteenth Amendment Privileges Or Immunities Clause: How “Attrition Of Parliamentary Processes” Begat Accidental Ambiguity; How**Ambiguity Begat Slaughter-House,” 18 WILLIAM & MARY BILL OF RIGHTS JOURNAL 445 (2009) (The framers were determined, in light of the Court’s Barron v. Baltimore decision holding that the Bill of Rights applies not to states but only to Congress, to amend the Constitution to make clear that the Bill of Rights and protections of other basic civil rights do apply to the states). Ronald Dworkin, “The Court and the University,” 72 UNIVERSITY OF CINCINNATI LAW REVIEW 883 (2004). (The Fourteenth Amendment declares that states must give all people “equal protection of the laws,” and the use of race in admissions decisions, even as one factor among many, denies that protection).

[11] Robert H. Bork, “Neutral Principles And Some First Amendment Problems,” 47 INDIANA LAW JOURNAL 1 (1971). Antonin Scalia, “Originalism: The Lesser Evil,” 57 UNIVERSITY OF CINCINNATI LAW REVIEW 849 (1989). Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment (Cambridge, Mass.: Harvard University Press, 1977). Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty (Princeton: Princeton University Press, 2004) 91-120. Keith Whittington, “The New Originalism,” 2 GEORGETOWN JOURNAL OF LAW AND PUBLIC POLICY 599 (1999). To be sure, not all conservatives oppose gay marriage. But given that every Republican presidential candidate except George Pataki has come out on the record against the Obergefell decision (and he has recently withdrawn his candidacy), this generalization appears to be fitting. See Zeke Miller, More Than 300 Republicans Call On Supreme Court To Recognize Gay Marriage Nationally, TIME MAGAZINE, Mar. 5, 2015.   

[12] The word homosexual, gay, or lesbian does not even appear once in any recorded congressional or state convention debate on the amendment. Curiously enough, several prominent conservatives have read the Court’s modern equal protection cases against a Lockean background that would guarantee equal protection only from government action that denies negative liberty. Under this theory, the equal protection clause could only be read to prevent not compel government action (such as the issuances of marriage licenses). This approach also emphasises the criminal penalties that were pending in cases such as Loving, Turner, and Zablocki to accommodate prior decisions that could not conceivably be reversed today. See Philip A. Hamburger,Natural Rights, Natural Law, and American Constitutions,” 102 YALE LAW JOURNAL 907 (1993).    

[13] Paul Brest, “The Misconceived Quest For Original Understanding,” 60 BOSTON UNIVERSITY LAW REVIEW 204 (1980), Jack N. Rakove, Original Meanings: Politics and Ideas In the Making of the Constitution. New York: A.A. Knopf, 1996. Larry G. Simon, “The Authority of the Framers of the Constitution: Can Originalist Interpretation Be Justified?” 73 CALIFORNIA LAW REVIEW 1482 (1985), Caleb Nelson, “Originalism and Interpretive Conventions,” 70 UNIVERSITY OF CHICAGO LAW REVIEW 519 (2003), and Ronald Dworkin, “The Forum of**Principle,” 56 NEW YORK UNIVERSITY LAW REVIEW 469 (1981).

[14] Otero v. New York City Housing Authority, 484 F.2d 1122 (2d Cir. 1973), Reed v. Reed 404 U.S. 71 (1971), Frontiero v. Richardson 411 U.S. 677 (1973), Craig v. Boren 429 U.S. 190 (1976), Mississippi University for Women v. Hogan 458 U.S. 718 (1982), J.E.B. v. Alabama Ex. Rel. T.B. 511 U.S. 127 (1994), Cleburne v. Cleburne Living Center Inc. 473 U.S. 432 (1985), Mills v. Board of Education, 348 F.Supp. 866 (D.D.C.1972), Alamo Heights v. State Board of Education, 790 F.2d 1153 (5th Cir.1986), and Romer v. Evans 517 U.S. 620 (1996).      

[15] Ronald Dworkin, Freedom’s Law: The Moral Reading of the American Constitution (Cambridge, Ma.: Harvard University Press, 1999) 270. Edward B. Foley, “Interpretation and Philosophy: Dworkin’s Constitution,” 14 Constitutional Commentary 151 (1997). David A. J. Richards, Toleration and the Constitution (New York: Oxford University Press, 1986).

[16] H. Jefferson Powell, “The Original Understanding of Original Intent,” 98 HARVARD LAW REVIEW 885 (1985).

[17] Under this theory, practices that were perfectly fine when the EPC was ratified may also come to violate the provision as society evolves. The most poetic endorsement of this living constitutionalist approach comes from Mr. Justice Holmes’ opinion for the Court in Missouri v. Holland, 252 U.S. 416 (1920): “With regard to that we may add that when we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation. The case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago.” There is also a simpler way to explain this approach. Imagine that you are near your Grandma, who is on her deathbed. Her last words to you are eat healthy food. Assume also, that at the time leading nutritionists believe that red wine is unhealthy and whole milk is healthy and that grandma knows this and intends that her granddaughter/son will adhere to this background knowledge when choosing beverages. The granddaughter/son may reasonably interpret her grandmother’s words to mean that she should drink whole milk and stay away from red wine. However if for some reason, leading nutritionists conclude that red wine is healthy and whole milk is not, no one would think that the granddaughter/son would be wrong in making choices that contradicted her grandmother’s original intentions. Nay, we might even say that she would have to make such choices in order to carry out the spirit of her grandma’s original command to her.     

[18] I am indebted to Skylar Cohen for directing my attention to this source: William R. Rice, Urban Friberg, and Sergey Gavrilets, “Homosexuality as a Consequence of Epigenetically Canalized Sexual Development,” 87 THE QUARTERLY REVIEW OF BIOLOGY 343 (2012).  Emery P. Dalesio, Martha Waggoner, and Mike Schneider, Kenneth Morgan Stancil III Allegedly Killed College Supervisor In Possible Gay Hate Crime ASSOCIATED PRESS, Apr. 15, 2015. Erin Fuchs, Hate Crimes Against Gays In America BUSINESS INSIDER, May 21, 2013.      

[19] G.M. Herek et al., Demographic, Psychological, and Social Characteristics of Self-Identified Lesbian, Gay, and Bisexual Adults in a U.S. Probability Sample, 7 Sexuality Res. & Soc. Policy 176 (2010); see also G.M. Herek et al., Internalized Stigma Among Sexual Minority Adults, 56 J. Counseling Psychol. 32 (2009). Comparable data for heterosexuals’ perceptions of their own sexual orientation are not available.

[20] Powell supra.

[21] Allgeyer v. Louisiana 165 U.S. 578 (1897), Lochner v. New York 198 U.S. 45 (1905), Adair v. United States 208 U.S. 161 (1908), Coppage v. Kansas 236 U.S. 1 (1915), Adams v. Tanner 244 U.S. 590 (1917), Hammer v. Dagenhart 247 U.S. 251 (1918), Duplex Printing Press Co. v. Deering 41 U.S. 172 (1921), Bailey v. Drexel Furniture Co. 259 U.S. 20 (1922), Adkins v. Children’s Hospital 261 U.S. 525 (1923), Nichols v. Coolidge, 274 U. S. 531 (1927) Railroad**Retirement Board v. Alton Rr., 295 U. S. 330 (1935) Louisville Joint Stock Land Bank v. Radford, 55 Sup. Ct. 869 (1935), United States v. Butler 279 U.S. 1 (1936), Carter v. Carter Coal Company, 298 U.S. 238 (1936).

[22] As a descriptive matter, it is a tad ironic that liberals are now rallying for legislative restrictions on Congress and state legislatures when the modern Democratic Party was founded on the exact opposite proposition. Perhaps fear of popular elections and democracy is all one should expect from a party that can’t hold congressional majorities for prolonged periods of time. In the words of the German intellectual Friedrich Nietzsche, “Blessed are the forgetful: for they get the better even of their blunders [and evidently popular sovereignty].” SeeRobert H. Jackson, The Struggle for Judicial Supremacy: A Study of a Crisis In American Power Politics (New York: Vintage Books, 1941). Edward Corwin “The Constitution as an Instrument and as Symbol,” AMERICAN POLITICAL SCIENCE REVIEW (1936).  

[23] Sotirios A. Barber, On What the Constitution Means (Baltimore: Johns Hopkins University Press, 1984).

[24] Most politically active undergraduates I have spoken to at Stanford would readily deny that we must maintain this useful fiction when discussing or criticizing the Supreme Court’s decisions and they place relatively little stock in the function this little fib plays in our representative democracy. They are perfectly free to do so but, as soon as they do all bets are off and judges can stop making good-faith efforts to at least maintain the appearance of the rule of law. I tend to think that the grass may not be greener on the other side of the fence when all the aesthetic and philosophical costs are accounted for.

[25] To be sure, this is an empirical claim and may be refuted by conclusive evidence. However, the fact that this claim is not facially implausible means that it should be treated seriously until we are given reason to do otherwise. To paraphrase retired Associate Justice David Souter “Our skepticism towards the [originalism] argument should be a function of its novelty and plausibility – and it is certainly not unprecedented or inconceivable that “the greatest menace to [judicial integrity is a failure to adhere to the original public meaning of the text].” Nixon v. Shrink Missouri Government Political Action Committee 528 U.S. 377 (2000).     

[26] William E. Nelson, The Fourteenth Amendment: From Political Principle to Judicial Doctrine (Cambridge, Mass.: Harvard University Press, 1988) 34-60.

[27] Meyer v. Nebraska 262 U.S. 390 (1923).

[28] Pierce v. Society of Sisters 268 U.S. 510 (1925). Ironically, both Meyer and Pierce were written by James McReynolds, arguably the most conservative justice (not counting Clarence Thomas) to ever sit on the high bench and an unapologetic anti-Semite. McReynolds’ authorship should also bolster the argument that recognition of a ‘right to marry’ in the abstract is a non-partisan issue.    

[29] Griswold v. Connecticut, 381 U.S. 479 (1965), Loving supra, Eisenstadt v. Baird, 405 U.S. 438 (1972), Roe v. Wade, 410 U.S. 113 (1973), Moore v. City of East Cleveland 431 U.S. 494 (1977), Carey v. Population Services International 431 U.S. 678 (1977), Turner v. Safley 482 U.S. 78 (1987), Lawrence v. Texas 539 U.S. 558 (2003).

[30] Abner J. Mikva and Eric Lane, Legislative Process (New York: Woulter’s Law and Business Press, 2009). Perhaps a more nuanced response to this counterargument would account for the fact that early interpretations of a clause, even if they are categorically distinct from the provison’s original meaning, ought to be controlling in cases for reasons of stability or stare decisis. For example, the constitution is silent on the question of the executive’s power to remove cabinet officers. However, no serious constitutional law scholar would argue today that this silence should require President Obama to obtain the “advice and consent of the Senate” in order to remove Secretary Kerry, Attorney General Lynch, or Secretary Lew from office. The reason is quite obvious: the removal debate in the 1790s, Andrew Johnson’s impeachment and acquittal over his disputed removal of Secretary Stanton, and the Supreme Court’s ratification of sole executive removal in Myers v. United States forecloses such an interpretation. Under this theory, the existence of the right to marry should be viewed in much the same way: a prudential reading that should be recognized even if it is at odds with the ratifiers’ understanding of the fourteenth amendment.    

[31] S. F. C. Milsom, A Natural History of the Common Law (New York: Columbia University Press, 2003).

[32] In the alternative, legal realists and/or critical legal scholars may assert that this whole article is simply a grand act in window-dressing and is really about reaching a certain political result rather, than setting out a comprehensive theory of interpretation. As a liberal Republican (who occasionally votes Democrat when my party nominates someone who appears to want to take the country to a time before July 2, 1964, or appears incapable of governing a diverse nation effectively), I suppose that it is no coincidence that my political beliefs match my general interpretive theory. My only response to this would be to ask my legal realist and critical legal friends to look in the mirror and see if they could survive the same critique. I think we all know what the answer would be. Exhibit A: Liberals perplexing embrace of Justice Holmes’ (ironically, not the first Justice Harlan’s) trite statement in his Lochner dissent: “The 14th Amendment does not enact Mr. Herbert Spencer’s Social Statics” but belief that the amendment somehow codifies the writings of Judith Jarvis Thomson in Griswold and its progeny: “The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” In fairness to some New Dealers, a large portion of them ( Frankfurter, Jackson, and Black) refused to bring back Lochner in sheep’s clothing, but many were not able to resist biting the forbidden fruit. Conservatives are not the only ones who like to have their cake and eat it too, and liberals should own up to this and offer a substantive reply instead of screaming hypocrisy. Jefferson and Lincoln were hypocrites but this label does little to explain why they held the positions they did.       

[33] 438 U.S. 265 (1978).

[34] 551 U.S. 701 (2004).

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