Introduction
Orin Kerr has a thoughtful post responding to my remarks on his exchange with Ilya Somin, who in turn has a response to Kerr. The topic for discussion is whether there is reasonable originalist argument for a constitutional right to same-sex marriage. To cut directly to the bottom line, my previous post suggests that there might be such an argument on the basis of the “natural rights” interpretation of the Privileges or Immunities Clause of the Fourteenth Amendment. But the meaning of the Fourteenth is contested by originalists, with Kurt Lash and Randy Barnett articulating clashing conceptions of its original meaning.
The primary aim of my previous post, however, is not to enter into the debates about a constitutional right to same-sex marriage or the meaning of the Fourteenth Amendment. My aim is to clarify the debate. Kerr’s most recent post is thoughtful and sincere, but in my view it further muddies the waters, introducing new confusions and misunderstandings of contemporary originalism, both as an academic theory and as an important movement in contemporary constitutional practice.
Kerr continues to maintain that there is no distinctly originalist argument for same sex marriage. In his latest post, he modifies his position in various ways, introducing a series of new moves, directed both at my post and at Ilya Somin’s thoughtful contributions to the debate.
Populist Originalism
Kerr’s primary move in response to my post is to characterize my remarks as limited to academic originalist theory. Kerr then suggests that the proper subject of discussion is what I will label “Populist Originalism,” that is, originalism as it is conceived by the public (perhaps including perhaps lawyers and judges who are unfamiliar with the writings of originalist judges, lawyers, and scholars).
Kerr Does Not Offer an Account of the Content of Populist Originalism
Assuming arguendo that Kerr were correct and focusing on Populist Originalism would be the way to go, I should think that Kerr would have offered some account of what counts as originalism for the public. But he does not do this. But this lacuna seems quite important since he is making a claim about what does (and does not count) as a originalist argument (or more precisely as a Populist Originalist argument).
Popular Beliefs About Originalism Are Ill-Informed and Do Not Reflect Originalist Practice
So far as I know, there is no good empirical data on public beliefs about originalism. Because I am an originalist, I do talk to all sorts of folks (academics, judges, lawyers, and lay people) about originalism. It seems likely to me that many members of the public have never heard of originalism. One common lay understanding of originalism is that it is shorthand for "judicial conservatism" or “what religious conservatives believe the constitution means.” I have heard originalism defined as “anti-woman” and as “reactionary.” And on the other side of the spectrum, originalism is perceived as the view that “the law should be American” or “what liberal judges are doing is wrong.” As you might expect, very few lay people (including very intelligent people who are well informed about public affairs generally) have even a vague notion of what originalism actually is.
Even among some academics, lawyers, and judges, definitions of originalism are frequently dated and based on misconceptions. I have had many conversations with fairly sophisticated academics and practitioners who believe that “original intentions originalism” is the only form of originalism, and more crudely, that originalism is the view that we should decide cases by asking what James Madison would have done. That definition of originalism excludes both Justice Scalia and Justice Thomas—they are public meaning originalists, as are most contemporary originalist academics. I should think it obvious that a definition of originalism that excludes them is not a good one.
To the extent that Kerr’s point is that there are no reasonable originalist arguments for a constitutional right based on simplistic, dated, and clearly erroneous beliefs about contemporary originalist theory and practice, he might be right. But I don’t think that conclusion is very interesting, and I doubt it will have a significant influence on the way that the new same-sex marriage cases will play out in the Supreme Court or in serious evaluation of the case by sophisticated knowledgeable judges, lawyers, scholars, and public intellectuals. To the extent that Kerr is now asking a question about Populist Originalism, he has moved away from what was interesting and illuminating in his original post.
Another Way of Putting the Question: Must One Be a Nonoriginalist to Make a Reasonable Argument for Same Sex Marriage
So we can reframe Kerr’s question in a more perspicuous and illuminating way by asking whether one must be a nonoriginalist to argue for a constitutional right to same-sex marriage. Because of the conceptual confusion that inevitably results from a failure to offer a clear understanding of what divides originalists from nonoriginalists, Kerr’s posts have not yet offered criteria by which we could decide whether a proposed answer to this question (or his original question) is correct or not. I have offered a criteria, which captures the actual practice of sophisticated originalists, both on the bench and in the academy.
The Originalist Family of Constitutional Theories & Kerr’s Reductio Ad Absurdum
In my post, I argued that originalism was a family of constitutional theories. Almost every originalist affirms two core ideas, fixation and constraint, but originalists differ on the what original meaning is. The two most prominent forms of originalism are public meaning originalism and original intentions originalism. Adherents of these two views agree that the original meaning is fixed at the time each provision of the constitution is framed and ratified, but they disagree how it is fixed. Public meaning theorists believe that what counts is the public meaning of the constitutional text: so the public meaning of the Fourteenth Amendment depends on linguistic and contextual facts around 1867. Intentionalists believe that the meaning of the Fourteenth was fixed when it was drafted.
In his most recent post, Kerr suggests that my understanding of originalism leads to the conclusion that there is an originalist argument for any conceivable result. He tries to show this with the following example:
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. It’s the argument I just mentioned, that this meaning was adopted by the Third Amendment. Maybe that’s a bad originalist argument it satisfies the Fixation Thesis and the Constraint Principle.
I am a bit mystified by Kerr’s reductio, because I am not sure what it is supposed to show. Kerr hasn’t told us what the content of Populist Originalism is, but whatever it is, there are surely bad arguments that the public would understand as originalist. For example, “James Madison would favor a constitutional right to same sex marriage if he were alive today.” The public might recognize that as an originalist argument, and for all I know, there are some folks who actually would believe this is a good originalist argument.
I should have thought that it was clear to everyone, including Kerr, that we are talking about reasonable originalist arguments--not bad ones. Provisionally, let us say that a reasonable originalist argument must (a) be originalist (e.g., affirm fixation, constraint, and some theory of original meaning), (b) be valid in form (satisfying the requirements of logical consistency and so forth), and (c) supported by evidence of original meaning that would be viewed as relevant and probative by competent constitutional lawyers). I should have thought that Kerr himself was asking the question whether there are reasonable originalist arguments for a constitutional right to same-sex marriage. The problem with Kerr's reductio is that it is based on an interpretation that is patently unreasonable and without any evidentiary support.
But there is another and more fundamental problem with Kerr’s argument. I said that originalism is a family of constitutional theories that share a core (fixation and constraint) but differ on the mechanism of fixation (public meaning versus original intent). I did not say that any conceivable view that accepted fixation and constraint is a member of the family. Kerr’s reduction seems to based on a new version of originalism, where delusional or crazy beliefs about the meaning of constitutional provisions are the original meaning. Let us call Kerr’s theory, “Batshit Crazy Quasi-Originalism.” Of course, there are no judges, lawyers, or academics who adhere to this theory.
But wait, there's more. Batshit Crazy Quasi-Originalism could not possibility count as a form of originalism, because it is not a theory of the communicative content of the constitutional text. That is, it doesn’t offer an account of original meaning. There is no equivalent to "public meaning" or "original intentions" in this theory. Kerr seems to believe that "fixed by batshit crazy beliefs" counts consistent with the Fixation Thesis. If so, his understanding of the thesis is different than mine.
Perhaps, Kerr would elaborate his reductio ad absurdum and argue that one could satisfy my definition of originalism with an argument that conventional semantic meanings of the words of the Third Amendment actually did refer to Sarah, the Black Sable, but there is no such evidence in the real world. And to talk about a world where there was such evidence is simply to change the topic. Oren would no longer be discussing his own question, whether there are there reasonable originalist arguments for a constitutional right to same sex marriage. What is the point of discussing batshit crazy arguments?
Or perhaps Kerr means to imply that all of the possible originalist arguments for a constitutional right to same sex marriage are batshit crazy. If so, then he has hardly met his burden of persuasion, which is quite high indeed.
Distinctively Originalist Arguments for Same Sex Marriage
Kerr seems to think that we ought to be asking the question whether there is a “distinctively originalist” argument for same sex marriage. It is not clear what he really means by this. If he means an argument that only originalists can make, then his question is not well formed. That is because nonoriginalists can make all of the same arguments that originalists make—subject to the caveat that original meaning is not always decisive. As Mitch Berman has observed, almost all nonoriginalists believe that original meaning is one of the relevant modalities of constitutional argument. Even David Strauss, who argues for a common-law constitutionalist variant of living constitutionalism would not claim that the constitutional text is simply irrelevant to the common-law process.
So the quest of a distinctively originalist argument for anything is doomed to failure, if by "distinctively" you mean an argument that only originalists would make. This way of posing the question obscures rather than illuminates the possible role of reasonable originalist arguments in the same-sex marriage cases.
The Privileges or Immunities Clause
Kerr only responds to the first few paragraphs of my post, and for that reason, he does not take up the most likely source of a reasonable originalist argument for a constitutional right that would bear on the same-sex marriage question, the privileges or immunities clause of the Fourteenth Amendment to the Constitution. Kerr's omission may stem from the fact that there is a similar omission in Somin's posts. Neither Kerr nor Somin is an originalist.
Neither Kerr nor Somin works on the original meaning of the Fourteenth Amendment. So it is hardly surprising that their discussion does not take up the most relevant contemporary debates over the meaning of the Fourteenth Amendment. To do that, they would need to immerse themselves in the literature and the primary sources. A good starting point would be The Fourteenth Amendment and the Privileges and Immunities of American Citizenship by Kurt Lash and the privileges or immunities chapter of Restoring the Lost Constitution: The Presumption of Liberty by Kerr and Somin's co-blogger, Randy Barnett. My understanding of Lash's position would suggest that it implies that privileges or immunities clause would not support a same-sex marriage right. Randy Barnett's view, which includes a natural rights component, might support such a right. My view is that one must engage the academic literature and the primary sources to give an informed judgment about these complex issues.
Original Meaning and Constitutional Change
The Constitution includes the Privileges or Immunities Clause of the Fourteenth Amendment and the Ninth Amendment. There is genuine disagreement among originalists about the meaning of "the privileges or immunities of citizens of the United States" and "the rights retained by the people." But almost all originalists agree that it is the original meaning of the constitutional text that binds us, not the policy preferences of the framers or ratifiers.
"Original expected applications," to use Jack Balkin's felicitous phrase, are evidence of original meaning, but they are not meaning itself. This is important because our beliefs about facts change. And as I argued in my original post, something else changes as well. Deeply held and widely shared social norms change over time. It is simply a fact about law in general and constitutional interpretation and construction in particular that social norms shape our sense of what is possible and plausible. Some ideas that were "off the wall" decades or centuries ago are "on the table" today. This is no less true of our perceptions of original meaning that it is of our perceptions of other legal issues.
When deeply held and widely shared social norms change, we see new possibilities for legal argumentation. It may well have been the case that an originalist argument for same-sex marriage would have seemed crazy not so many years ago. That is because we lawyers (academic or practicing) are human beings subject to what Rawls called the "burdens of reason." We assess evidence in light of our priors, our conceptual frameworks, and our deeply held normative beliefs. When social norms change, "crazy" can become "almost plausible" and then "reasonable" and even "obvious."
As I mentioned in my first post, I don't know whether there is a reasonable originalist argument for a constitutional right to same sex marriage. That is because I have not done the work. But doing the work, digging into the literature and the primary sources, is the only way to know the answer to the kind of question that Kerr is trying to pose.
A Final Thought Experiment
Let me end with a thought experiment about a possible world in which the original meaning of the the Privileges or Immunities Clause had prevailed from the start. It is not wholly implausible to think that the clause is relevant to the right to marry--that marriage could be a privilege or immunity of citizens of the United States. Hypothetically, let us assume that the clause did encompass marriage. If Slaughterhouse and Cruikshank had not effected what amounts to effective judicial nullification of the clause, one can certainly imagine arguments that a statute forbidding marriage by African-Americans would violate the clause. And from there one can imagine an originalist version of Loving v. Virginia, grounded on the Privileges or Immunities Clause. In a parallel universe more tolerant than our own, this rule might have been extended to polyamorous relationships--perhaps Reynolds came out differently. And in this possible world, in which the actual original meaning of the Privileges or Immunities Clause is held constant, but original meaning had prevailed in the early cases, one can imagine that the widely shared and deeply held social norms against same-sex marriage eventually changed. And once they had changed, we can certainly imagine a same-sex marriage decision in which the reasoning respected the Fixation Thesis and the Constraint Principle.
Out of caution, I should be clear: I am not making any claims about whether "marriage" was one of the "privileges or immunities of citizens of the United States."
But what if it was? And what if the underlying rational for legal prohibition of same-sex marriage was that it was contrary to "public morals"? What if the "legitimate state interest" (or to forgo the contemporary constitutional jargon, "the justification for reasonable regulation of the privilege or immunity of marriage") for the prohibition was that deeply held and widely shared social norms that supported judgments like "same sex marriage is immoral"? And what if those social norms changed, such that it became difficult for lawyers and judges to maintain that there was a "public moral" rationale for denying the "privilege or immunity" of marriage to same sex couples? What then? Might it come to seem obvious that the privilege and immunity of citizens of the United States to marry (hypothetically part of the original meaning) extended to same-sex couples?