In the condensed version of an interview published on Bloomberg, Yale law professor Jack Balkin takes up the question of “Originalism, Scalia and Gay Marriage.” Here is a curious exchange begun on the basis of a false premise by interviewer Francis Wilkinson:
[Wilkinson]: . . . [S]ince there is neither original intention nor public meaning to guide a jurist on an issue like gay marriage, what does someone like Scalia fall back on as an interpretive strategy?
[Balkin]: The 1787 and Reconstruction-era framers didn’t know about gay people (as opposed to same-sex acts), but they didn’t know about airplanes and the Internet either. Originalists reason from general principles to new factual situations. The question is how they read the history to generate these principles–how general or specific. Different people do this in different ways and at different levels of generality, producing different results.
It’s difficult to know what to make of Balkin’s statement that the framers of the original Constitution and of the Fourteenth Amendment “didn’t know about gay people (as opposed to same-sex acts).” Does he mean that there were gay people but that the framers didn’t know of their existence? But how would he know what they knew?
More probably, given his parenthetical remark that they did know about “same-sex acts” (regarded as immoral and in many jurisdictions criminal for both sets of framers), Balkin means that “gay” as a conscious identity did not exist in the eighteenth and nineteenth centuries. Therefore the framers “didn’t know about gay people.” That’s plausible. But then it follows that “gay” is a social construct, and by definition social constructs change. If new social constructs persuade us to regard norms once considered just to be unjust, there is a way to change those norms–by changing the laws that embody them. And the framers of both 1787-91 and 1866-68 were of one mind about who changes the laws: legislators and the sovereign people, not judges. For if the new social constructs do not persuade us that our norms should change . . . we don’t change them. And maybe the new social constructs are themselves evanescent anyway.
But in any event, Balkin is asking and answering the wrong question (even if he answers it correctly). The question is, did they know what marriage was (and is) in 1787-91 and 1866-68? Of course they did. And they rightly understood that marriage is not a mere “social construct,” but a natural relation on which societies are constructed–not something evanescent but something permanently important to human communities. When they wrote the Constitution, they had no notion that they were putting into the hands of judges a power to alter the meaning of such natural relations in response to “evolving” and evanescent social constructs. We would betray their handiwork, and our Constitution, if we pretended otherwise.