Conservatism without Originalism

A defense of a modest philosophy of judicial interpretation.

Steven Taylor’s “This Reactionary Moment” began as a comment on an earlier post of mine. So, it’s only fitting that what began as a comment on his post that grew too long and off-topic spawned this one.

In advocating a conservatism of approach, I gave the example of gay marriage:

I would have preferred, for example, same-sex marriage to have been legalized organically, as is now happening across the land with marijuana, than via judicial dictat. It may have taken a couple more years but it was already well underway and would have come with substantially less resentment by those who lost the culture war.

That’s especially true with issues like transgender rights, which are essentially a brand new issue culturally and intellectually but seems to have been swept in along with gay equality, for which we were much more ready as a society. The consequence has been a massive backlash from people who are simply befuddled by an issue they can’t possibly understand.

In both cases, I support the direction in which we’re inevitably headed. But I think process matters considerably more than the radicals (to use Steven’s description) seem to acknowledge.

In response to pushback from @Mikey, I added,

I’m sufficiently conservative ideologically that I don’t think gay rights are in the Constitution. So, even though I support the policies created by SCOTUS rulings to the contrary, I see them as judicial activism and social change by fiat.

Where I think the courts would have had a legitimate role is in enforcing the Full Faith and Credit Clause. So, while nothing in the Constitution should reasonably interpreted as requiring Alabama to marry gays, it absolutely requires Alabama to recognize gays who got married legally in Connecticut as married. There’s clear black letter law to that effect going back to the earliest days of the Republic. Indeed, it’s what spawned the Defense of Marriage Act.

Would that have been messier in some respects than the way it actually happened? Sure. But it would have been seen much more widely as legitimate. And I think that’s important when enacting major social changes of this sort.

Steven pushed back in two ways.

First, he argued that relatively few opponents of gay marriage would have understood, much less accepted the difference in routes as being any more legitimate. There, I think he’s probably right. It would have satisfied a relative handful of conservative intellectuals but most normal people care more about results than process.

Second—and the reason for this post—he observed,

And, as we have discussed before, I really do not think that we are bound by original intent (if anything, because there was never some clear, obvious, immutable intent).

If “nor shall any State […] deny to any person within its jurisdiction the equal protection of the laws” means women and gays in 2019, and it didn’t in 1868, I am really do not know why we should be bound to a 1868 definition of “citizen.”

Beyond that, there has never been a consistent application of originialist interpretation by the Court, so really the issue becomes one of political philosophy, not fidelity to a lost way of doing things.

As a side note (not aimed at you): I will take the originialists on the Court seriously when they start interpreting the Second Amendment to only apply to firearms available in 1791, among other things. Either words only mean what they meant in the 1790s (which is absurd in my estimation) or they don’t.

Here, our differences are relatively nuanced.

We’re in agreement that the time in which the Constitution or a given Amendment to it isn’t and indeed can’t be fully controlling. So, for example, talking on the telephone is clearly protected free speech and writing on the Internet is clearly part of a free press even though neither technology was conceivable in 1789. And, yet, because there are nuanced differences, the courts have to make distinctions.

Similarly, the 14th Amendment clearly wasn’t written with the intent of declaring men and women equal. As late as the 1970s and 1980s, proponents of sex equality were trying to add an Equal Rights Amendment to the Constitution. And fell short. Still, I’m amenable to the argument that social changes, including a vast array of legislation, changed the cultural and legal norms sufficiently to make the ERA a moot point. And, because of those changed norms, the striking down of discriminatory laws and practices by the courts was widely seen as legitimate.

I simply don’t think we were anywhere near that point on gay marriage. It was slowly becoming legal at the state level but remained among the most fought-over hills in the culture wars. Even relatively progressive states were still enacting “marriage is between one man and one woman” amendments to their constitutions via ballot initiatives.

Nor do I think “but it’s discrimination on account of sex and we’ve already established that that’s illegal” gets us there. We’ve always separated those issues in the public discourse. Indeed, the feminist movement bitterly fought against the notion that, if the ERA were passed, we’d have gay marriage and unisex bathrooms, calling those absurd slippery slopes.

Again, I think process matters a great deal. While legal niceties likely won’t matter much to most people, they should.

And, frankly, the outcome-is-all-that-matters mindset is precisely why we’ve taken on a winner-take-all approach to judicial nominations and confirmations, particularly at the Supreme Court level. The difference between Merrick Garland and Brett Kavanaugh as one-ninth of the highest court in the land shouldn’t have people marching in the streets or breaking down sobbing. But, if the Court is going to function as a de facto Constitutional convention, it’s all holds barred.

FILED UNDER: Law and the Courts, U.S. Constitution
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. I think it is far easier to make a case in favor of interpreting the Equal Protection Clause of the 14th Amendment to include the idea that if states are going to recognize and provide benefits to something known as “marriage,” that it cannot discriminate on the basis of the gender of the parties involved. While it’s true that an originalist approach would argue that the primary purpose of the amendment was to provide equal rights to the freed slaves, there is nothing in the language of the amendment that limits its application to freed slaves specifically or race generally. It speaks of all”persons” in the United States regardless of race, gender, ethnicity, religion, and, arguably, sexual orientation or gender identity. This would be consistent with the “textualist” approach that was favored by the late Justice Antonin Scalia who, as he himself pointed out in interviews toward the end of his life, was not an “originalist” in the respect that he beleived the Constitution’s language should be interpreted based on the alleged intent of the drafters based on sources outside the Constitution. (Scalia wrote about the textualist approach in his last major book on jurisprudence before he passed away. It’s long, but worth a read by anyone really interested in the topic.)

    Granted, Scalia was in the minority in Obergefell and wrote a dissent that arguably detoured from a textualist approach, but I think that was an error.

  2. SKI says:

    @Doug Mataconis:

    Granted, Scalia was in the minority in Obergefell and wrote a dissent that arguably detoured from a textualist approach, but I think that was an error.

    It was only an “error” if one believes that Scalia was being honest about actually believing in “textualism” rather than, as fits all available evidence better, that he was using it to justify his personal political preferences.

    That quibble aside, I agree with you, Doug. Short version of legal interpretation: intent of drafters doesn’t matter unless a particular reading would be exactly opposite the actual intent. That is, it doesn’t matter if the drafters didn’t think that “X” would result from the language they drafted unless they specifically drafted it to prevent “X” from happening. In the context of gender discrimination, they drafted the legislation to prevent discrimination against women. Reading the language to prevent discrimination against LGBTQ+ may not have been their intent but is an acceptable and appropriate reading as they didn’t intend to have the bill’s primary purpose be to specifically allow such discrimination.

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  3. @SKI:

    Well, the argument really is that if the drafters of the 14th Amendment had wanted to limit the applicability of the Equal Protection Clause to race then they could have, and presumably would have, put that in the text of the Amendment. The fact that they did not is a strong argument in favor of the idea that the Amendment was meant to be a broader protection of the rights of all Americans.

  4. Andy says:

    James,

    I agree with your broad point and have talked about it many times before – that process matters as much as the outcome and sometimes more – and that legitimacy is crucial for everything the government does. And an ends-justify-the-means view on government action is, at best, short-sighted and often counterproductive.

  5. Kathy says:

    I seriously don’t think anyone’s fundamental rights ought to be subjected to the comfort, bigotry, intolerance, preferences, or feelings of the majority. Much less to the intent of people long dead and gone, whose lives cannot possibly be affected by actions undertaken today.

  6. James Joyner says:

    @Kathy: But what are fundamental rights? Who gets to say if not a majority or their representatives? I don’t think we owe much fealty to dead Framers. But if they don’t matter at all then we don’t meaningfully have a written Constitution, or indeed a Constitution. If that’s the case, the only majority that matters is 5/9 of the Supreme Court. Which is the least democratic institution in our society.

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  7. Kathy says:

    @James Joyner:

    But what are fundamental rights?

    To begin with, the same rights the majority has.

  8. Jay L Gischer says:

    The 14th amendment protects all persons. It has always been clear what it meant, but working out how to apply it in every case has been the work of a century and a half for the courts. It isn’t at all simple, but it had already established that laws that discriminate based on gender were prohibited.
    But a law that says you can’t marry someone because you are male (and so are they) discriminates on the basis of gender. That’s the foundation of Obergefell. It didn’t discover “and we protect gay people, too.” It didn’t have to. If you could marry Bob as a woman, you can do it as a man, too.

    Yeah, there was backlash. I don’t think it’s fair to put that backlash on the backs of people who simply wanted to get married, and had to put up with blatantly posturing and unconstitutional laws such as DOMA. Politicians had been making hay on their lack of well being for something like 20 years. What goes around comes around.

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  9. Stormy Dragon says:

    Suppose a 28th amendment were ratified tomorrow containing the exact same text as the current 14th amendment. Originalism suggests that the two would have different meanings owing to the differing intents of the people who passed them and that subsequent rulings would have to consider each separately, and that some laws would be constitutional under the 14th but not the 28th, and vice versa.

    This suggestion seems facially absurd to me.

    The problem with originalism is that it’s based on three presuppositions, all of which are demonstrably false:
    1. That the thoughts of the hundreds for federal and state legislators that are involved in the development and passage of a constitutional amendment can be coalesced into a unique, specific “intent”.
    2 That this unique, specific “intent” can be perfectly captured in the brief paragraph or two making up the amendment.
    3. That this text can then perfectly communicate that unique, specific “intent” to all subsequent generations of Americans, no matter how much the cultural context shifts afterwards.

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  10. Gustopher says:

    I would have preferred, for example, same-sex marriage to have been legalized organically […]. It may have taken a couple more years but it was already well underway and would have come with substantially less resentment by those who lost the culture war.

    That’s especially true with issues like transgender rights, which are essentially a brand new issue culturally and intellectually but seems to have been swept in along with gay equality, for which we were much more ready as a society.

    I don’t see transgender rights as a new issue, I see it as the same issue. In fact, the same issue we have been beating our heads against for decades. Yes, black people are equal. Yes, women are equal. Yes, Jews are equal. Yes, disabled people are equal. Yes, gay people are equal. For fvcks sake, yes, trans people are equal…

    At a certain point, it becomes tedious to have to keep enumerating and going through a long “organic” process to coddle people who can’t figure out the pattern.

    You might argue that the writers of 14th Amendment didn’t intend to make all people equal, and I would think you’re just wrong, but it’s really clear that it’s been interpreted as all people are equal for the last 50 years.

    I don’t think the original writers considered gay, disabled, Jewish, black, transgender folks who weigh 400lbs, and have whatever we decide to discriminate against next, but I do think it’s pretty clear that they said that all people have equal protections under the law.

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  11. Alex Hamilton says:

    @Stormy Dragon: Mic drop 🙂

  12. Kathy says:

    @Gustopher:

    I don’t see transgender rights as a new issue, I see it as the same issue. In fact, the same issue we have been beating our heads against for decades. Yes, black people are equal. Yes, women are equal. Yes, Jews are equal. Yes, disabled people are equal. Yes, gay people are equal. For fvcks sake, yes, trans people are equal…

    This.

    Why do we have to fight the same battle every time? Why should we have to fight the same battle every time? And why should recognition of basic rights wait?

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  13. Just nutha ignint cracker says:

    @Gustopher: Yeah, but in the minds of many Americans, all of those groups you named have to first be considered “people” to begin with. And that hasn’t changed and may not ever.

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  14. Alex Hamilton says:

    @Gustopher: What specific rights are you talking about with respect to Transgender people?

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  15. An Interested Party says:

    It was only an “error” if one believes that Scalia was being honest about actually believing in “textualism” rather than, as fits all available evidence better, that he was using it to justify his personal political preferences.

    It has become a joke how Supreme Court Justices rationalize their decisions and try to justify them with various inconsistent forms of legal mumbo jumbo…at least Thurgood Marshall was honest in how he made his decisions–you do what you think is right and let the law catch up…and before anyone complains about that being “judicial activism” he/she needs to explain how Bush v. Gore, among other decisions, wasn’t judicial activism…

  16. Chip Daniels says:

    @Stormy Dragon:
    This is perceptive, that “originalism” actually means that words change their meaning depending on the intent of the drafters.

    Seems rather post modern.

  17. DrDaveT says:

    @James Joyner:

    But what are fundamental rights? Who gets to say if not a majority or their representatives?

    Which is it? At present, “a majority” have a strikingly different view from that espoused by “their representatives”. That’s a big part of the problem.

    If we had a national referendum process, we wouldn’t need nearly as much “judicial activism” to bring the law into harmony with the Will of the People.

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  18. Jim Brown 32 says:

    @Kathy: Well for one, there as been a cultural shift with the introduction of new identity groups that have decided they deserve rights.

    You make it sound trivial that we’ve moved from simply groups you could clearly identify by their appearance to groups that self-identify based on how they feel. These groups feel so strongly bonded to these self defined identities that they feel somehow robbed that public policy doesn’t affirm their beliefs.

    Seriously, why don’t the same rules apply to race as it does to applies to gender? Why can’t people be “race-fluid”? I’d like to be trans-racial white man when getting a loan, on traffic stops, and hailing a cab.

    Why not? Yet another example of white privilege….white people get to make up new identity groups with legal protections and the whole shebang if they don’t feel like they fit into existing groups. I ain’t hating the player…but that’s some power…and nerve.

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  19. Gustopher says:

    @Alex Hamilton:

    What specific rights are you talking about with respect to Transgender people?

    Freedom from job discrimination.
    Freedom from housing discrimination.
    Freedom from health insurance discrimination.
    Freedom from arbitrary denial of public accommodations.
    Freedom from bathroom police discrimination.
    Freedom from plain old regular police discrimination.

    You know, the basic shit that you take for granted as a cisgender white male.

    Equal protection under the laws, and when their rights collide with other’s rights, they get a fair hearing and rights are balanced with a more compelling interest than “they’re icky”

    To pick an example: Does that mean they should be able to join the military? I don’t know, but the test shouldn’t be “unit cohesion,” which is just “they’re icky,” but whether they are physically capable. We have all sorts of rules about diabetics in the military, based on whether the medical condition and treatment is able to be maintained in various circumstances, and similar questions can be asked of trans folks, women, the disabled, the obese and little people. And it may be reasonable to say “no” for some or all roles — but the rationale has to be grounded in more than “they’re icky”

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  20. An Interested Party says:

    Yet another example of white privilege….white people get to make up new identity groups with legal protections and the whole shebang if they don’t feel like they fit into existing groups. I ain’t hating the player…but that’s some power…and nerve.

    As if there are no transgender people of color who want the same thing and aren’t fighting for the same thing…

  21. Daryl and his brother Darryl says:

    Scalia, that famous Originalist, proved that Originalism is just a fiction; lipstick on the pig that is Republicanism. Originalist when it serves the agenda, but more often than not just chronic contradictions.

  22. Tony W says:

    @Doug Mataconis: How would you respond to a challenge to all age-related laws in the context of equal protection under the 14th Amendment?

    For example, let us stipulate that children age 13 cannot purchase cigarettes or drive a car or purchase alcohol, and one of those restrictions is challenged in court (assume we can overcome the plaintiff’s standing as a minor to bring suit). Is that 13-year-old citizen to be treated as any other citizen?

    Anticipating one objection – essentially “make ’em all wait equally” – what if that 13-year-old has a disease that assures they never reach the traditional age of majority?

  23. Tony W says:

    @Jim Brown 32:

    Seriously, why don’t the same rules apply to race as it does to applies to gender?

    This is absurd. First of all, race is not a black-and-white issue (ahem), unless you are of the “single drop” mindset which treats black skin as a pollutant to white skin. Look around any shopping mall in America these days and you’ll notice we have become brownish – particularly younger people.

    Similarly, my understanding is that gender identification is less about specific genatalia than about societal constructs around gender behavior expectations.

    Few of us men run around chopping wood in heavy flannel before packing up to head to the local tavern for a few belts of whiskey in a dirty glass. There’s a graduated continuum all the way between the flannel guy and Divine.

  24. Gustopher says:

    @Tony W:

    How would you respond to a challenge to all age-related laws in the context of equal protection under the 14th Amendment?

    Wow, that is a stupid argument.

    Does the state have a compelling interest in preventing 8 year olds from driving two ton chunks of metal down the road at 55mph? Is it animus towards 8 year olds, or is there evidence that 8 year olds cannot be trusted with two ton vehicles at those speeds?

    There has been discussion about making senior citizens take the vision tests for drivers licenses more frequently, because there is evidence that this is a problem — I don’t know the current status of these proposals.

  25. Gustopher says:

    @Jim Brown 32: so, your argument is that until black folks achieve equality in practice as well as law, no one else can advance?

  26. Tony W says:

    @Gustopher: Does compelling state interest in public safety override the constitution?

    Could a Southern state claim a compelling state interest in other forms of hindering equal protection?

  27. Jim Brown 32 says:

    @Gustopher: I have no argument except that granting special statuses to groups whose identity is completed self defined is completely new territory without precedent in history. And while it may make sense today…further iterations of this concept may not be desirable. Day follows night.

    Black people have no choice as this identity group is thrust upon us at birth and is immutable. Today, people run around and say forget what you see…it’s all about how I feel on the inside. I won’t mention who, by and large are are the purveyors of this conception and giving it it’s legal teeth. Hint: The same group of people that invented the concept of Black, White, Yellow, and Red “races”

  28. Jim Brown 32 says:

    @Tony W: If it were only about masculinity or femininity there wouldn’t be the same militancy about pronouns and bathrooms. Everyone understands there is overlap and departure from stereotypical roles with each individual. You understand the issue wrong

  29. @James:

    But, if the Court is going to function as a de facto Constitutional convention, it’s all holds barred.

    The problem is: as long as you have a system wherein the Court has judicial review and the constitution is essentially impossible to change save in cases of radical consensus, this is the role the Court will play, regardless of whether one tries to be an originalist or not. (Especially in a system wherein Congress really can’t function for a variety of reasons).

    It is quite clear to me that even “originalists” can reach whatever conclusions they like, so I don’t see it as all that constraining.

  30. X says:

    @Doug Mataconis: Doug, I have a question for you–if, purely hypothetically, the original US Constitution (as in, the 1787 text) would have explicitly stated that US states are allowed to restrict/limit one’s marital choices based on one’s sex, and if all of the subsequent Amendments to the US Constitution would have had the exact same text that they have in real life, would it still be permissible to use the 14th Amendment to legalize same-sex marriage throughout the entire US in this scenario even though doing this would have meant implicitly repealing an earlier explicit part of the original US Constitution that the draftsmen and ratifiers of the 14th Amendment didn’t actually intend to repeal?

  31. X says:

    @Kathy: Would you still feel the same way had the original US Constitution (as in, the 1787 text) explicitly stated that US states can restrict/limit one’s choice of marital partner based on one’s sex?

  32. X says:

    @SKI: What about the 26th Amendment? Can it be read to allow 18-year-olds to run for mayor, governor, Congress, and even the US Presidency even though it wasn’t the intention of the people who wrote and ratified the 26th Amendment?

  33. X says:

    @Doug Mataconis: Can’t that logic be extended to allow things such as adult incest (at least in cases where the risk of reproduction is very low) and/or polygamy nationwide, though?

  34. X says:

    @Kathy: Technically speaking, though, when same-sex marriage was illegal, no one–whether gay, straight, bisexual, or something else–could actually enter into a same-sex marriage.

    I am a same-sex marriage supporter; I’m simply pointing out that same-sex marriage bans discriminated against everybody.

  35. X says:

    @Kathy: Are you going to extend that logic to the natural-born citizen requirement for the US Presidency and thus support implicitly repealing it using the 5th Amendment? After all, why exactly should naturalized US citizens (a minority) be unable to run for either the US Presidency or the US Vice Presidency like the majority can (at least after they turn 35)?

  36. X says:

    @Steven L. Taylor: If we accept the fact that the US Constitution is extremely hard to amend as being a warrant for judicial activism, though, why not fully extend this logic wherever it goes? For instance, why not use the 5th Amendment to implicitly repeal the natural-born citizen requirement for the US Presidency or to apportion electoral votes exclusively based on population? Likewise, why not use the 26th Amendment to implicitly lower the age requirements for all US federal political offices to 18 years (along with likewise doing this for the age requirements for all US state political offices)?

  37. @X: Yes, there is a difference between plain text (such as restrictions on ages for specific offices) and general statements of rights like in the equal protection clause.

  38. X says:

    @Steven L. Taylor: Why shouldn’t we be able to use general principles elsewhere in the US Constitution to overrule explicit constitutional text, though? For instance, if the original US Constitution (as in, the 1787 text) would have (purely hypothetically) said that US states are allowed to segregate their schools by race and have anti-miscegenation laws (with whatever penalty for breaking these laws that they desired, including years in jail and perhaps even the death penalty), and if none of the subsequent Amendments to the US Constitution would have been intended to repeal this part of the original US Constitution, what exactly would have been so objectionable about using the vague principles of the 14th Amendment to implicitly repeal this part of the original US Constitution? After all, living constitutionalist arguments such as achieving good results, being against the dead hand of the past, the difficulty of the constitutional amendment process, et cetera could likewise be used to justify overruling explicit constitutional text just as long as one could find some other part of the US Constitution that you could use in justifying this decision of yours.

  39. X says:

    @Steven L. Taylor: Also, out of curiosity, do you believe that there are any limits on the US constitutional amendment power other than those explicitly stated in the text? For instance, if we will (purely hypothetically) properly pass and properly ratify a new US constitutional amendment that will turn the US into a dictatorship, do you think that such a US constitutional amendment would actually be constitutional?

  40. @X:

    if we will (purely hypothetically) properly pass and properly ratify a new US constitutional amendment that will turn the US into a dictatorship, do you think that such a US constitutional amendment would actually be constitutional?

    I think if you can get to the point wherein 2/3rds of both chambers of Congress and 3/4ths of state legislatures (or, the convention routes) are willing to amend the constitution to turn the US into a dictatorship we are no longer in the realm of debating judicial interpretation of the document.

    At that point the country would likely already be in a dictatorship, regardless of whether the words on the page were changed. Or, if you are assuming it all happened through purely democratic, all above-board means, then that would mean there was broad consensus in the country that we should be a dictatorship.

    At that point, we are going to have a dictatorship whether it has constitutional validity or not.

    Parchment can only protect to a certain point.

  41. @X: I assume you have a point you are dancing around, but let me as direct as possible:

    The entire act of judicial review is one of interpretation. Some statement do not lend themselves to much in the way of interpretation. So, stating that the president has to be at least 35 years of age does not lend itself to much in the way of interpretation. However, what constitutes “cruel and unusual punishment” does.

    The issue becomes how does one go about doing the interpreting. One can pretend like there was a stone cold, obvious answer to a given set of words when they were written, but the reality is that language and culture change and the history of the Court shows that such changes have mattered (and history also shows that clear meaning of words are not rock solid even at the time they are written).

    35 years of age does not change meaning over time.

    Other words, especially those assigned to abstract principles, are a different matter. And the abstractness of the principle is key (what is “freedom of speech”? If that was clear, the Sedition Act of 1798 would never have been passed).