Thomas Colby (George Washington University Law School) has posted The Federal Marriage Amendment and the False Promise of Originalism (Columbia Law Review, Vol. 108, p. 529, 2008) on SSRN. Here is the abstract:
This Article approaches the originalism debate from a new angle - through the lens of the recently defeated Federal Marriage Amendment. There was profound and very public disagreement about the meaning of the FMA - in particular about the effect that it would have had on civil unions. The inescapable conclusion is that there was no original public meaning of the FMA with respect to the civil unions question. This suggests that often the problem with originalism is not just that the original public meaning of centuries-old provisions of the Constitution is hard to find (especially by judges untrained in history). The problem is frequently much more fundamental, and much more fatal; it is that there was no original public meaning to begin with. It is a natural consequence of the constitution-making process that a constitutional provision addressing a deeply controversial subject can only be enacted when it is drafted with highly ambiguous language so that, rather than possessing a single original meaning, it appeals to disparate factions with divergent understandings of its terms. As such, the central premise of originalism - that, in Justice Scalia's words, the Constitution was enacted with a fixed meaning ascertainable through the usual devices familiar to those learned in the law - is often inaccurate. And for that reason, the central promise of originalism - that, by relying on an objective, discoverable, fixed constitutional meaning, originalism can prevent judges from subverting democracy and the rule of law by reading their personal values into the Constitution - is a false one.
And from the text:
If our originalist judge were to pursue this line of thinking in interpreting the FMA, then she would not be discouraged by the fact that there was no actual, shared public understanding of the meaning of the text any more than she would be deterred by the fact that there was no single intent of the Framers and no shared public expectation of how the Amendment would apply to civil unions. Rather, she would opine that, due to imperfect information, misleading rhetoric, or flawed interpretation, the true meaning of the text of the FMA had been wrongly understood by one side or the other.300 Her task would be to use the tools of textualist interpretation to determine which side had it right.
But that too would be a fruitless quest. Having conducted the extensive research necessary to draft Part I of this Article, I am, I would like to think, fully informed of all of the possible arguments about the meaning of the Amendment. And yet I do not know which meaning is the “correct” one. Fully comprehended, the text does not yield an answer.301 It only begs the question.
Textual analysis stumbles when the dispute centers on interpreting a word whose meaning was hotly contested in contemporary discourse, as was true of the word “marriage” during the debate over the FMA. To some, marriage was (and is) “a one-flesh communion of persons consummated and actualized in the reproductive-type acts of spouses”—a committed, divinely sanctioned sexual union of a man and a woman.302 To others, marriage was (and is) “at once a deeply personal commitment to another human being and a highly public celebration of the ideals of mutuality, companionship, intimacy, fidelity, and family”; its essence does not depend on the sex of the participants.303 The Amendment was proposed precisely because, in the words of one of its backers, “our cultural consensus on the meaning of marriage has been lost.”304 Its backers were “seeking to establish, in the fundamental law, the essential meaning of marriage as the union only of a man and a woman.”305 But the
Amendment does not so much define the term as prescribe a rule with a meaning and scope that are dependent upon which definition we choose to adopt. Does the mandate that “marriage in the United States shall consist only of the union of a man and a woman” mean that the government may bestow recognition and benefits upon loving, committed, romantic relationships only between members of the opposite sex, or does it mean only that no union except that of a man and a woman can be labeled by the state as a “marriage”? The answer to that question depends on which of the two understandings of “marriage” is correct, a question manifestly begged, but not answered, by the text of the Amendment.306
Because our language, our law, and our culture did not at the time share a definition of the key disputed term in the FMA, there is no way to objectively determine the original meaning of the Amendment through textual analysis. The mere fact that so many intelligent, informed people, including the Amendment’s authors themselves, disagreed on the meaning of the text is compelling evidence that these words, at that time, in that context, did not have a single, objective meaning with regard to this issue. Thus, original, objective-public-meaning textualism also fails to yield an answer.
Highly recommended, but (as readers of LTB might expect), I have some comments:
Accepting (arguendo) Colby's premise (that the term "marriage" has no generally accepted public meaning), I believe that his argument (about the FMA) would be essentially correct. Colby uses Gary Lawson's objective-interpreter variant of original public meaning originalism as his target, but the point can be extended to more plausible variations that rely on "conventional semantic meaning" (which are derived from patterns of usage). If we accept Colby's factual assumption, then the term "marriage" is ambiguous as between two senses: (a) "marriage" as a nominal legal kind with no essential content, and (b) "marriage" as a functional social kind (roughly "loving, committed, romantic relationships" accompanied by a legal or religious ceremony involving avowals of commitment of some type). To be clear, I am not endorsing Colby's assumption about linguistic facts--I haven't done the necessary empirical work on patterns of usage.
But the implication of Colby's argument is precisely the opposite of that which Colby asserts in the following passage:
The foregoing establishes that, whatever strand of originalism one chooses to pursue, there was no original public meaning of the Federal Marriage Amendment, at least not one that could answer the most obvious and important question posed by its interpretation. What, if anything, does that tell us about the viability of originalism as a means of constraining judicial discretion in interpreting the rest of the Constitution?
I submit that, while it of course proves nothing, it nonetheless casts a great deal of light on the limits of originalism. In seeking the original public meaning of the very recent FMA, we do not need to confront many of the substantial obstacles that usually challenge the originalist enterprise: the fact that most of the historical materials casting light on constitutional meaning are profoundly unreliable (the extant records of the state ratification of the Constitution and the Bill of Rights, for example, are woefully incomplete and were intentionally manipulated and selectively edited by partisans307); the fact that the Framers probably never discussed or even thought about the precise question at bar (and likely never thought about anything bearing even a slight resemblance to it);308 the fact that the world has changed so much since the framing that it often is maddeningly anachronistic to ask how the Framers would have thought that their provision would apply to the modern practice in question; 309 and the fact that the passage of time makes it increasingly difficult, if not impossible, to avoid infusing the search for original meaning with our own subjective, modern understandings.310 In the case of the FMA’s application to civil unions, the historical record is complete and unaltered, the “framers” actively discussed the question, and the question was every bit as central to the world in which they were living as it is in ours, since they are us and their world is our world. What is more, the FMA is a narrow amendment, targeted at and facially capable of covering only a small category of issues—unlike, say, the textually expansive Equal Protection, Privileges or Immunities, and Due Process Clauses. And yet we still cannot discern its original public meaning.
Colby's conclusion simply does not follow. If Colby's assertions about linguistic facts were correct, then FMA would have failed to create an original public meaning that would have resolved an important range of cases for a very particular reason: the crucial term "marriage" would have been ambiguous because of the very social conflict that the amendment was intended to resolve. But Colby's own argument demonstrates that this ambiguity could have been resolved by using alternative language that unambiguously picked out one of the two senses that he identifies. Colby cannot deny that his article identifies the different senses, because if he were to deny this, then he would not have made out his claim of ambiguity. That is, Colby's article demonstrates that it is possible to create unambiguous original public meaning by careful drafting--the kind of drafting done by Colby himself.
Of course, if Colby's assertions about linguistic facts are true, then it does demonstrate that it is possible to draft constitutional language that has what we might call "residual ambiguity"--that is, ambiguity that cannot be resolved by reference to linguistic facts about conventional semantic meaning. But it would simply be an elementary logical error to infer the likelihood or necessity of such ambiguity from the fact of its possibility. From "X is possible" one cannot infer "X is likely" or "X is necessary."
Here is another way of putting the issue. Original public meaning originalism does not make the claim that the original public meaning of each and every actual provision of the Constitution resolves every possible case. Indeed, it is a distinctive feature of the "New Originalists" (e.g., Balkin, Barnett, and Whittington) that they accept the distinction between interpretation (the determination of linguistic meaning or semantic content) and construction (of supplementary rules, standards, or principles paradigmatically in cases where the text is vague). Colby's analysis of the FMA shows (assuming he is right about the linguistic facts) that there is at least one possible constitutional provision that contains an important ambiguity that cannot be resolved by resort to conventional semantic meaning. If any of actual provisions of the Constitution had this characteristic, then those provisions would require constitutional construction: that is, their application to at least some cases would require rules of constitutional law that are not provided by the semantic content of the constitutional text. One more point in this vein: so far as I am aware, no originalist theorist has ever advanced the absurd claim that every possible constitutional provision has an unambiguous original public meaning--but all that Colby has shown is that one such provision exists.
With this in mind, we can see that the conclusion that Colby draws in the following passage does not follow from the argument that he makes:
Put simply, if we cannot even find the original public meaning of (1) a very narrow amendment designed to confront a single subject, (2) debated in the last few years, such that none of the evidence has been lost, and such that (3) the question is one with as much relevance in the Framers’ world as in our own, (4) with a public record far more detailed, rich, and accurate than had previously been generated by American constitution- making, and (5) with regard to a central question posed and expressly discussed ad nauseam in that debate, then we surely cannot expect to routinely find and apply the original public meaning of (1) capacious, open-ended provisions (2) debated more than a century or two ago, (3) where the historical record is much more sparse and unreliable, (4) with regard to a question never contemplated by the drafters and ratifiers, (5) as applied to a world very different from the one that they knew.
The logical invalidity of the move in this paragraph is clear. The five characteristics that are identified in the first portion of the paragraph were not causally relevant to the ambiguity that Colby identifed in the FMA--they are simply irrelevant to the factor that resulted in a lack of conventional semantic meaning. Likewise, the five characteristics that Colby identifies in the second half of the paragraph would not have resulted in a lack of convenitonal semantic meaning--if the FMA had been drafted in a manner that avoided the ambiguity. Of course, Colby might be able to produce a warrant for the claim that follows "we surely cannot expect," but his analysis of the FMA simply does not provide the missing connection.
Despite my disagreement with the bottom line, I believe Colby's article moves the ball forward. The possibility of "residual ambiguity" is an important one--which originalist theory must face head one.
Read Colby!
