Thomas Colby has a posted a very interesting article on SSRN about originalist interpretation and the Federal Marriage Amendment. The legal theory blog has posted on it here and here. 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.
The article first details the controversy surrounding the text of the Federal Marriage Amendment. Because the language of the amendment was ambiguous between two meanings of “marriage,” it was not clear if the amendment forbade civil unions completely, if it would permit state legislatures to enact civil union laws, or if judges could enforce those rights. Colby argues that this “ambiguity was essential to its hopes of accumulating the broad-based support needed for passage. The Amendment came close to succeeding only because both those who supported civil unions (but not gay marriage) and those who opposed civil unions (along with gay marriage) understood it to reflect their views.” (at 534)
An originalist interpreter searching for the original meaning of the text is therefore in an impossible situation: there is no original meaning to discover, or rather, there are multiple original meanings, and originalism does not provide the resources to decide between them. Colby uses this example to argue more generally that lack of an original meaning is an “inherent, nearly unavoidable feature of constitutional provisions addressing highly controversial subjects,” and that therefore “originalist interpretation cannot keep its promise to limit judicial discretion in the very cases in which that discretion is most threatening.” (at 588)
Colby discusses some distinctions in originalist thought as he develops his argument.
Original-intent originalism is concerned with determining the subjective intent of either (1) the framers or (2) the drafters of the text. This is a familiar form of originalism, and it is subject to a number of well-known criticisms.
Original-meaning originalism, on the other hand, looks to the meaning of the text at the time it was adopted. There are further distinctions to be made within original-meaning originalism as well:
(3) Original expected application: “the original meaning of a constitutional provision is determined and constrained by the expectations of the framing generation as to how that provision would be applied to particular problems. If the Framers would have expected the Constitution to permit something, then it is permitted today, and if they would have expected it to preclude something, then it is precluded today.” (at 573) This is a narrow form of originalism most commonly associated with Justice Scalia.
(4) Original public understanding: “in ratifying the document, the people appropriated it, giving its text the meaning that was publicly understood,” so what matters is “the original [public] understanding of the principle that was embodied in the text,” or “what the original language actually meant to those who used the terms in question.” (at 580)
(5) Original, objective-public-meaning originalism: this version has pulled furthest away from the history, and hews close to the text itself. As such, “the concern is no longer with how the words of the Constitution were actually understood by the Framers, the ratifiers, the public, or anyone else, but rather with how an objective, hypothetical reader should have and likely would have understood them had he been fully informed.” (at 583)
Colby is careful to note that while they are conceptually distinct, these versions of originalism lie along a continuum. In practice, of course, things get even murkier.
Oregon takes an originalist approach to constitutional interpretation. Are any of the approaches described by Colby dominant in the jurisprudence? Or, practically speaking, are these distinctions just academic? What are the conceptual and normative underpinnings of the interpretive practice in Oregon?
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