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. It is a natural consequence of the constitution-making process that a constitutional provision addressing a deeply controversial sub- ject can only be enacted when it is drafted with highly ambiguous language so that, rather than possessing a single original meaning, it appeals to dispa- rate 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 famil- iar to those learned in the law”—is often inaccurate. And for that reason, the central promise of originalism—that, by relying on an objective, discover- able, fixed constitutional meaning, originalism can prevent judges from sub- verting democracy and the rule of law by reading their personal values into the Constitution—is a false one. INTRODUCTION .................................................. 530 R I. CIVIL UNIONS AND THE FEDERAL MARRIAGE AMENDMENT .... 535 R A. The Original Federal Marriage Amendment .......... 535 R B. The Revised Federal Marriage Amendment ........... 553 R C. The Marriage Protection Amendment ................ 560 R D. The Marriage Protection Amendment Redux ......... 563 R II. THE LACK OF AN ORIGINAL PUBLIC MEANING OF THE FEDERAL MARRIAGE AMENDMENT .......................... 571 R A. Original Expected Application ....................... 573 R B. Original Public Understanding ....................... 579 R * Associate Professor of Law, The George Washington University Law School; J.D., Harvard Law School, 1996; B.A., Duke University, 1992. 529 Electronic copy available at: http://ssrn.com/abstract=1154771 \\server05\productn\C\COL\108-3\COL301.txt unknown Seq: 2 25-MAR-08 12:26 530 COLUMBIA LAW REVIEW [Vol. 108:529 C. Original, Objective-public-meaning Textualism........ 583 R III. THE FALSE PROMISE OF ORIGINALISM ...................... 586 R CONCLUSION .................................................... 599 R INTRODUCTION The originalist school of constitutional interpretation blossomed in the 1980s in response to the perceived judicial activism of the Warren and Burger Courts.1 In asserting the existence of an objective, discovera- ble, fixed constitutional meaning capable of directing judicial decision- making in a value-neutral manner, originalism made an enticing prom- ise—a way to ensure that judges do not subvert democracy and the rule of law by reading their personal values into the Constitution.2 This was an enticing promise, to be sure, but it was one that original- ism initially could not keep. As first conceived, originalism was a jurispru- dence of original intent. It sought to interpret the Constitution accord- ing to the subjective intentions of those who framed it: The Constitution means what the Framers intended it to mean.3 That theory was sharply criticized on a number of fronts, most convincingly for two seemingly insurmountable flaws. First, it is a fool’s errand to attempt to ascertain the collective intent of a large group of individuals, each of whom may well have been motivated by differing desires.4 Second, much of the his- torical evidence indicates that the Framers themselves manifestly did not intend for the Constitution to be interpreted according to their subjec- tive intentions.5 Thus, a jurisprudence of original intent is both impossi- ble (there was no single original intent of the diverse Framers) and self- defeating (in order to faithfully follow the original intent of the Framers, one must not follow the original intent of the Framers). As such, it obvi- ously could not follow through on its promise to deliver us from judicial activism. These withering critiques were successful in defeating the theory of original intent, but not in putting an end to the originalist movement. Far from it, in fact. Originalism has transformed itself to deflect these criticisms, and in so doing, it has reemerged much stronger. As Justice Scalia—originalism’s leading champion—has explained, today’s original- ists seek “the original meaning of the text, not what the original drafts- 1. See Keith E. Whittington, The New Originalism, 2 Geo. J.L. & Pub. Pol’y 599, 599–603 (2004) [hereinafter Whittington, New Originalism]. 2. See, e.g., Raoul Berger, Jack Rakove’s Rendition of Original Meaning, 72 Ind. L.J. 619, 647 (1996); Barry Friedman, The Turn to History, 72 N.Y.U. L. Rev. 928, 943 (1997) (noting this promise). 3. See, e.g., Edwin Meese III, Toward a Jurisprudence of Original Intent, 11 Harv. J.L. & Pub. Pol’y 5, 10–11 (1988) [hereinafter Meese, Original Intent]. 4. See, e.g., Paul Brest, The Misconceived Quest for the Original Understanding, 60 B.U. L. Rev. 204, 209–17 (1980). 5. See H. Jefferson Powell, The Original Understanding of Original Intent, 98 Harv. L. Rev. 885, 903–13 (1985). Electronic copy available at: http://ssrn.com/abstract=1154771 \\server05\productn\C\COL\108-3\COL301.txt unknown Seq: 3 25-MAR-08 12:26 2008] FEDERAL MARRIAGE AMENDMENT AND ORIGINALISM 531 men intended.”6 Rather than looking to uncover the subjective inten- tions of the Framers, the focus of the modern originalist inquiry is on the original, objective public meaning of the text. “All that counts,” explains Judge Robert Bork, “is how the words used in the Constitution would have been understood at the time.”7 This redirected focus on original meaning, rather than original in- tent, ostensibly avoids both the problem of determining the collective in- tent of the numerous Framers (the Framers may have had many reasons for enacting it, but the text nonetheless had only one meaning8) and the problem of self-defeat (much of the historical evidence that was mustered to undermine the reliance on original intent actually supports the reli- ance on original meaning by suggesting that the Framers believed that the original meaning of the text, rather than the original intent of the drafters, would control future constitutional interpretation9). Original- ists thus believe that the new, “original meaning originalism” overcomes the most prominent objections to the old, “original intent originalism,” while at the same time fulfilling the central promise of the originalist enterprise: the ability to provide a neutral, objective method of constitu- tional decisionmaking. Indeed, the new originalism, almost every bit as much as its failed forerunner, stakes its claim on its ability to overcome “the main danger in judicial interpretation of the Constitution[:] . that the judges will mis- take their own predilections for the law.”10 Originalists cast their theory as a “safeguard against political judging” and a “vindication of democracy 6. Antonin Scalia, Common-Law Courts in a Civil Law System: The Role of the United States Federal Courts in Interpreting the Constitution and Laws, in A Matter of Interpretation 3, 38 (Amy Gutmann ed., 1997) [hereinafter, Scalia, Common-Law Courts]. For discussion of the evolution of originalist thought from original intent to original meaning, see Randy E. Barnett, An Originalism for Nonoriginalists, 45 Loy. L. Rev. 611, 620–29 (1999) [hereinafter Barnett, An Originalism]; Vasan Kesavan & Michael Stokes Paulsen, The Interpretive Force of the Constitution’s Secret Drafting History, 91 Geo. L.J. 1113, 1134–48 (2003); Lawrence Rosenthal, Does Due Process Have an Original Meaning? On Originalism, Due Process, Procedural Innovation . and Parking Tickets, 60 Okla. L. Rev. 1, 3–11 (2007); Whittington, New Originalism, supra note 1, at 603–07. R 7. Robert H. Bork, The Tempting of America 144 (1990) [hereinafter Bork, Tempting]. 8. See, e.g., Randy E. Barnett, Trumping Precedent with Original Meaning: Not as Radical as It Sounds, 22 Const. Comment. 257, 258 (2005) [hereinafter Barnett, Trumping Precedent] (“That there is a unique original public meaning is a far more plausible claim than that one can discern a unique original intention from the potentially conflicting intentions of various framers.”). 9. See Barnett, An Originalism, supra note 6, at 621, 627–28. R 10. Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849, 863 (1989) [hereinafter Scalia, Lesser Evil]. As one prominent originalist has written, “the arguments on behalf of originalism . are preoccupied utterly with the examination of judicial power’s legitimacy.” Lillian R. BeVier, The Integrity and Impersonality of Originalism, 19 Harv. J.L. & Pub. Pol’y 283, 284 (1996).