The other day I argued against the judicial creation of same-sex marriage. My argument was originalist. The post has drawn some interesting emails.
Reader H.K. writes in:
You keep talking about what the people of Iowa intended when they put equal protection in their Constitution. I think you’re behind on your right-wing talking points. Scalia says we should look to “original meaning,” not “original intent.” . . .
I don’t think intention and meaning should be divorced. Look beneath the terminology to the concepts. Scalia’s repudiation of “original intent” aims to distinguish his search for the public meaning of a legal provision at the time it was adopted from a search for the subjective intentions of the people who drafted the provision. So, for example, a secret letter from a drafter showing that he intended something entirely different from what the informed public of the time took the provision to mean would not count as evidence toward its actual meaning. I agree. But Scalia’s “original meaning,” as applied to the Bill of Rights, for example, amounts to what the ratifying public thought they were ratifying, i.e., intended to ratify.
Reader B.J. points out that the text of the Constitution (like the text of the Iowa constitution) makes no reference to originalism. It does not, that is, command its interpreters to apply an originalist methodology in their interpretation. That is true but I don’t think it matters. Originalism is based on inferences from the logic of constitutionalism. But if there were such a you-must-use-originalism provision in the law there would be nothing to stop someone so inclined from creatively interpreting it into nullity anyway.