Text-Bound Originalism (And Why Originalism Does Not Strictly Govern Same Sex Marriage)

Abstract

Originalism has played a part in many court decisions including on the issue of whether states can ban same sex marriage. For the most part, the argument goes that the modern constitutional meaning trumpeted by supporters is not the original public meaning of the constitutional provision. Regarding same sex marriage, for example, originalists argue that the original public meaning of the Fourteenth Amendment's equal protection clause was the protection of African-Americans from discrimination by states, not the protection of gays and lesbians from discrimination by states. So, the equal protection clause did not and cannot protect gays and lesbians from such discrimination. These arguments assume that originalism should play a significant role in the interpretation of all provisions in the Constitution. This essay argues that this assumption is misplaced. The interpretation of the Constitution must begin with the text. The text of the Seventh Amendment is the only part of the Constitution that explicitly incorporates originalism, doing so through the use of the words common law and preserved in the context of limiting the authority of the judiciary and the jury. The express inclusion of originalism in the Seventh Amendment necessarily limits the use of originalism for the interpretation of the rest of the Constitution. Originalism must play a lesser role or no role in the interpretation of the rest of the Constitution, including the Fourteenth Amendment. While acknowledging that some role for originalism in the interpretation of the Constitution has been generally accepted, this essay argues that originalism does not strictly govern the Constitution outside of the Seventh Amendment, and nor should it same sex marriage.