On Constitutional Language
Wherein I take the view that as our understanding of language changes, so too does our application of the Constiution.
As my students have long heard me say (and I am sure I have said here at OTB) democracy is an aspirational regime type. That is: the ideals embodied in it, such as representativeness or civil liberties, are never fully and perfectly realized but we do aspire to improve them over time. The journey of the United States is certainly an illustration of this fact (and we are hardly alone in this regard).
Now, sometimes the aspirations of democracy are handled through legislative acts or constitutional amendment. An easy example is suffrage. When the US was founded voting rights were restricted to free (i.e., almost exclusively white) males, and in most states this also involved economic requirements as well. We moved, over time, to expand suffrage first to all white males (through state level legislation–indeed, it was not until 1856 that the last of the states, North Carolina, removed property requirements for voting) and later to others. From there we know that the 15th Amendment (theoretically) created universal manhood suffrage and that the 19th Amendment (theoretically) created universal suffrage. It, of course, took the Voting Rights Acts of 1965 to get us to the point where we really could claim universal suffrage in the US. And even today we argue about how easy it should, or should not be, to vote.
Additionally, Supreme Court decisions can also play a role in this process of aspiring to the ideals we claim to hold. The classic example is Brown v. Board of Education (1954) but there are numerous others wherein the Court has ruled in a way that increases citizen access to rights. (There is a debate, by the way, as to whether our institutional structure relies too heavily on the Court for this role, but that is a matter for a different discussion).
It is on this point that I wish to engage in friendly debate with my co-blogger, James Joyner, as I disagree with his critique of the Court’s reasoning in Obergefell v. Hodges:
while I applaud the public policy outcome here, I’m somewhat dismayed intellectually by the ruling. The notion that the Equal Protection Clause, adopted in 1868, was intended to convey a right to same-sex union is just absurd. Yes, times and circumstances change and the Constitution in some ways accommodates that. It’s patently obvious that the 1st Amendment protections of speech, press, and religion extends to the Internet, even though that particular technology was unfathomable in 1789. Similarly, Congress was certainly permitted to create and fund an Air Force, despite the Constitution only mentioning an Army and a Navy and the airplane not having been invented in 1787. Homosexuality was a known commodity in 1868; had those framing and ratifying the 14th Amendment been told that, in adding it to the Constitution, they would be enshrining same-sex marriage into our foundational document, they would have specifically declined to do so.
Now, it will not come as a shock to James that I disagree with this sentiment, as I am pretty sure we have had this general conversation more than once over the the last 17ish years, so I am not picking some new fight here (or really picking a fight at all). However, upon reading this (and Scalia’s dissent among other things) leads me to want to comment (which is the Blogger’s Curse–if not the Professorial one).
First, I am not persuaded that the test of how to broaden the interpretation of the words on the page is linked to new inventions. If we are going to say that the words should be bound to how the Framers themselves would have understood the terms, then I think that, in fact, we do need new language to allow for the Air Force (or, for that matter, for the owning of semi-automatic weapons). There is simply no way to assume that the Framers could have conceived of these things. Further, if we stick to the military for a moment, the only permanent arm of the military that the Framers envisioned was the Navy, given the need to protect trading lanes from pirates. Armies were raised for specific purposes and wars only fought when declared. The modern military bears no resemblance to what the Framers would have envisioned or understood (and while that is not an issue of democracy’s evolution, it is an example of how changing language influence what government does).
Even when it comes to fundamental right such as those in the First Amendment, I am not so sure that the Framers ever intended the broad protections we extent to pornography, for example. And the fact that some of the Framers supported the Alien and Sedition Acts even calls into question whether a lot of them would have supported the contents of the internet if you had given them examples when they were given the chance to vote for the amendment in the 1790s.
I find the general notion that we have to get into the heads of men from the 18th and 19th centuries to interpret political questions of right in the 21st century to be unnecessarily constraining and problematic to the point that semantic arguments override the very concepts under discussion, especially when we are talking about abstract principles (e.g., freedom of speech, equal protection, due process, etc.). (Abstract in definition, but with obvious concrete applications).
But back to the main topic: did the authors of the 14th Amendment know what homosexuality was? Of course they did. Did they intend for the 14th Amendment to lead to same sex marriage? I can’t imagine it entered their minds one little bit. However, I don’t think that’s the appropriate test or issue here. The question is, did they lay down a basic principle with the following words?
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. 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.
The notions of “equal protection of the laws,” for example, is a pretty clear principle that ultimately transcends the immediate thoughts in the mind of the person who penned them. Indeed, even if the person/persons who wrote the document did not envision the expansion of rights for Hispanics, women, homosexuals, or whomever else one might think of does not, in my opinion, obviate a deep principle that was laid down in constitutional law: that every citizens of the United States (every citizen) deserves to be treated by the law equally.
Now, of course, this is an excellent example of the aspirational nature of democratic governance that I started out with in this post. Because, after all, even if we assume that the authors of the amendment in question were seeking equal protection for newly freed slaves we all know quite well that there was a chasm between the intent of the words and the reality lived by black Americans at that point in time and going forward. Indeed, the intent of the 15th Amendment couldn’t be clearer and yet it took roughly a century before it was made manifest in reality (and to James point, in the voting rights case you can at least draw a line from intent to reality, and you can further see the manifestation of that intent ultimately via legislation—but one can also see that it took a long time to get to the point at which the right in question can to fruition).
There is the basic fact that a generic principle is laid down quite clearly in the amendment, It states that citizens get equal protection. Note that in 1868 the parameters of citizenship did not fully extend to women but over time our views of the definition of citizenship have changed. Ergo, I see no problem stating that the 14th Amendment applies to females, even if that was clearly not the original intent of the amendment. Likewise, we have moved in this country from a time in which homosexuality was treated as a mental illness to a period is which the closet was a major phenomenon to one in which same sex marriage was legal (a period of roughly 40 years).
As such, I don’t think it matters what “citizen” meant in 1868, but rather it matters what it means in 2015 and likewise it matters what the laws are now, not what they were then in terms of applying equal protection. The framers of the 14th Amendment provided a framework of if A then B (i.e., if a citizen, then equal protection). That the definition of A has changed should, therefore, alter our application of B (i,e, of the amendment itself). I honestly see no defensible reason why this should not be the case (but I am open to hearing the arguments).
So as a practical matter I am not sure how else to proceed with constitutional language. If the language is broad (e.g., “all citizens”) then I don’t see how our understanding of the phrase doesn’t change as our view of citizenship changes. Women were not full citizens in 1868, but they are now, ergo the phrase “of citizens of the United States” in the 14th Amendment applies to women now, even if that was not in the mind of Framers of the 14th Amendment. Likewise, if it is now the law in most states that same sex couples can be married, then the phrase “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” applies to laws about SSM (just at the Full Faith and Credit Clause of the US Constitution should apply).
A side note as a matter of practicality: the courts have usually taken the approach that the language in the constitution need not be understood solely within the intent of the framers of a given clause. A simple example of this in the context of the 14th Amendment is the phrase “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” This was clearly written to deal with the newly freed slave population in the aftermath of the Civil War and yet almost immediately it was used to mean a more generic statement of birthright citizenship.
I will agree, by the way, that it would be preferable that all of these matter be settled by legislation and/or constitutional amendment, but that is not a practical solution at all times, especially when we are talking about basic human rights.
Other questions also emerge: how do we know what the intent was of a given word or phrase? Whose intent? What if some of the authors of these passages foresaw an expanding inclusion and others didn’t? Original intent arguments make two flawed assumptions: 1) that the Framers got it right from the get-go, and 2) that the intent of the framer was fully clear in that mind of said framer. Neither of these propositions is true. Ultimately, I think that a) actual intent is harder to determine than one might think, and, more importantly, b) the very nature of principles is that they are broader and ultimately more aspirational than a time-bound interpretation would suggest.
In conclusion, and in a less legal context, I would submit that we all know this inherently when we consider what we think of the following sentence: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” Jefferson penned those words as a slave owner and in a context wherein women were not seen as equal to men in any number of ways. Do we, as Chief Justice Taney did in Dred Scott look at that and know that Jefferson was a slave owners and therefore the concepts in the sentence do not apply to blacks (or women)? Or do we take the aspirational sentiment that, indeed, the goal is universal application of the assertion?