GW Law Faculty Publications & Other Works Faculty Scholarship 2008 The Federal Marriage Amendment and the False Promise of Originalism Thomas Colby George Washington University Law School,
[email protected] Follow this and additional works at: https://scholarship.law.gwu.edu/faculty_publications Part of the Law Commons Recommended Citation Thomas B. Colby, The Federal Marriage Amendment and the False Promise of Originalism, 108 Colum. L. Rev. 529 (2008). This Article is brought to you for free and open access by the Faculty Scholarship at Scholarly Commons. It has been accepted for inclusion in GW Law Faculty Publications & Other Works by an authorized administrator of Scholarly Commons. For more information, please contact
[email protected]. \\server05\productn\C\COL\108-3\COL301.txt unknown Seq: 1 25-MAR-08 12:26 COLUMBIA LAW REVIEW VOL. 108 APRIL 2008 NO. 3 ARTICLES THE FEDERAL MARRIAGE AMENDMENT AND THE FALSE PROMISE OF ORIGINALISM Thomas B. Colby* 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 funda- mental, and much more fatal; it is that there was no original public mean- ing to begin with.