Well, that's original.

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A Gay-Rights Argument Scalia Could Love

Cass R. Sunstein is a Bloomberg View columnist. He is the author of “The World According to Star Wars” and a co-author of “Nudge: Improving Decisions About Health, Wealth and Happiness.”
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Supreme Court Justices Antonin Scalia and Clarence Thomas are famous for being “originalists”; they believe that constitutional provisions mean what they meant at the time they were ratified. In Scalia’s words, originalism promotes the rule of law, because it can help ensure a “rock-solid, unchanging Constitution.”

Whether or not we agree, Scalia's goal is honorable: He wants to limit the discretion of federal judges and allow the American people to govern themselves. As the lawyers prepare their briefs for the upcoming Supreme Court argument about bans on same-sex marriage, how remarkable, then, that some prominent originalists -- and admirers of Scalia -- are saying that such bans are inconsistent with the original understanding of the 14th Amendment.

The most detailed argument comes from Steven Calabresi, a distinguished professor at Northwestern University School of Law, a co-founder of the Federalist Society, a careful student of constitutional history and a long-time defender of originalism. Calabresi begins his analysis with the 17th-century political philosophers Thomas Hobbes and John Locke, who had a lot to say about equality, and whose ideas were borrowed for the U.S. Declaration of Independence. (“All men are by nature equally free and independent and have certain inherent rights,” Locke declared.)

In Calabresi’s view, the U.S. Constitution is committed to “the complete equality of all free-born inhabitants of the thirteen States, at least as far as to the privileges and immunities of state citizenship.” And after the Civil War, the Constitution was amended to produce “a great victory for equality in every way,” including by dismantling a racial caste system.

Calabresi argues that discrimination on the basis of sexual orientation is a form of unconstitutional sex discrimination. A woman who is forbidden to marry a woman is a victim of discrimination insofar as she would not be so forbidden if she were male. He also believes that discrimination on the basis of sexual orientation is “a creature of caste.” Hence bans on same-sex marriage are "ineluctably" unconstitutional.

But how does that square with an originalist approach to the Constitution? Did Americans generally think, on the day the 14th Amendment was ratified (July 9, 1868), that they were requiring states to recognize same-sex marriages?

Calabresi seems to be extracting from the historical materials an abstract principle (involving equality), giving that principle concrete (and contested) content, and then insisting that a longstanding social practice (forbidding same-sex marriage) must fall because it is inconsistent with the principle. That approach is not easy to count as originalist, because it necessarily depends on contemporary moral judgments, which is exactly what originalists seek to avoid.

It's true that some self-described originalists say that the Americans who ratified the Constitution might have meant to include a broad principle whose meaning would evolve over time. Suppose that on July 9, 1868, voters believed that the scope of the new Equal Protection Clause was not limited to the concerns of the time, and that the clause could come to invalidate practices that they themselves did not question. If so, maybe bans on same-sex marriage violate the Equal Protection Clause now even if they didn't when it was ratified.

But that isn't Calabresi’s argument. And many originalists -- including Scalia and Thomas -- have little enthusiasm for this approach. One problem is historical: Was the 14th Amendment genuinely designed to set out broad principles to which unelected judges were expected to give new content over time? We might also doubt that the term “originalism” is properly applied to the view that the Constitution sets out a series of abstract concepts (“freedom of speech,” “due process of law,” “equal protection”) with no fixed meaning. The appeal of originalism -- and what gives it a claim on our attention -- is its effort to keep judges from governing the rest of us according to their own moral judgments.

These points should not be misunderstood. In my view, originalism, as Scalia and Thomas practice it, should be rejected, not least because it is inconsistent with much of our constitutional tradition. And if the Supreme Court is to decide the question of whether same-sex marriage can be banned (as it apparently will), it should say no. But the best, and the most candid, arguments for invalidation must build on the wisdom of the early 21st century – and not pretend to rely solely on that from the late 18th. 

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

To contact the author on this story:
Cass R Sunstein at csunstein1@bloomberg.net

To contact the editor on this story:
Mary Duenwald at mduenwald@bloomberg.net