In his very first independent dissent on the Supreme Court, Justice Hugo Black--still fresh from the Senate and considered an intellectual lightweight by his colleagues--issued a peculiar opinion in an otherwise banal 1938 tax case, Connecticut General Life Insurance Company v. Johnson. Black proposed in his dissent a superficially simple but quietly potent idea that the text of the Constitution means precisely what the Framers intended it to mean--no more, no less. Ignored by the leading lights of the Court at the time, Black trudged on with his nascent but groundbreaking concept of originalism, delving into American history to ascertain the strictest, purest interpretation of the Constitution. He meant for his judicial philosophy to promote liberalism by sweeping aside decades of conservative precedent, making way for a dramatic surge in freedom of speech, racial equality, and economic regulation. The Constitution, he felt, was a fundamentally liberal document; accordingly, any doctrine that cleaved closely to its text was usually bound to produce a liberal ruling.
Black’s hopes for his philosophy turned out to be epically wrong. With the birth and boom of the dogmatically right-wing Federalist Society in the 1980s, originalism was appropriated wholesale by the right, who commandeered the philosophy as a driving force of conservatism. This switch was not entirely unexpected; even during Black’s tenure, the liberal patina of originalism had begun to crack, as the Justice dissented on cases ranging from privacy issues (Griswold v. Connecticut) to profanity in public places (Cohen v. California) to the rights of the accused (Miranda v. Arizona). Yet the modern-day originalists took the philosophy many steps further, citing it as justification to strike down federal gun control laws, uphold virtually any death penalty statute, and plant the seeds for the possible reversal of abortion rights, separation of church and state, and affirmative action.
For all its recent victories, however, originalism today is dying. This is not due to a lax enforcement of its tenets, nor to some sly liberal undermining of its fundamental precept. Rather, originalism is dying because it has failed on its own terms. As a judicial philosophy, it is inconsistent, capricious, and bizarre; as a core value of conservatism, it is weak and impractical. Only two members of the current Court, Scalia and Thomas, promote it to any considerable degree. The current Chief Justice, John Roberts, pays it only the slightest lip service when not ignoring it altogether; and Alito, who has already earned his place in the annals of extremist right-wing Justices, often openly mocks it. The Court’s conservative-leaning swing Justice, Kennedy, has moved onto international law as his judicial angle, while the four liberals, Ginsburg, Breyer, Sotomayor, and Kagan, filter their constitutional opinions through the lens of pragmatism and fairness. Originalism, we may aver with confidence, is currently sounding its death knell, for no other reason than its own inherent flaws. And with its demise will almost assuredly come an era of equality unparalleled in American history.
To understand originalism’s demise, one must understand its flaws; to understand its flaws, one must merely examine the internal inconsistencies in the rulings of those who claim to utilize it. Such erraticism is, not surprisingly, best displayed in the judgments of its own founder. In two opinions issued the same year, Black cited originalism as justification to allow the New York Times to print classified Pentagon Papers (New York Times Co. v. United States) and to censure a man sporting the phrase "fuck the draft" on his clothing in public (Cohen v. California). Apparently, to Black, when contested speech is printed in a newspaper, it falls within the Framers’ intent for First Amendment protections; when it is printed on a jacket, it does not. The dissent in Cohen focused on the distinction between speech and conduct, yet even this fine division is blurred by Black’s opinion, voiced in Jacobellis v. Ohio, that graphic sexual conduct depicted in a film could never be censored by the state.
Even more curiously, it was Black who led the charge for “incorporation”--the application of the Bill of Rights to the states through the Fourteenth Amendment. Nowhere is this intention made clear in the text of the article itself, nor does historical research prove the framers had this goal in mind. Nevertheless, Black ignored all evidence contrary to his opinion and continued to promote what must be acknowledged as a contemporary extrapolation of the Amendment (one which is held by even the originalists on the Court today). Thus, for all the ostensible objectivity of originalism, the philosophy has proven just as malleable and personal as any other judicial philosophy--if not more so, as the originalist feels no need to temper his opinion with the modesty of acknowledged subjectivity. The true original intent of the Constitution is known only to dead men, and those who act as clairvoyants to the Framers conjure up only tangled rationalizations for their own beliefs and prejudices.
Increasingly, judicial conservatives acknowledge this fact, and are hence ever more hard-pressed to present a constitutional argument against marriage equality. The originalist justification seems obvious: the Framers did not intend for gay people to get married, full stop. Appealing, perhaps, in its simplicity, this argument is awkward to deploy for the rather obvious reason that it relies on the same bases as de jure racism. The Due Process and Equal Protection clauses of the Fourteenth Amendment may guarantee that no state may “deprive any person of life, liberty, or property, without due process of law; nor deny any person...the equal protection of the laws”; but all evidence suggests that the framers of the Amendment had in mind slavery, not segregation, when drafting their article. In originalist terms, Brown v. Board of Education is almost surely a folly, while Plessy v. Ferguson should still stand as law of the land. It does not, however, because of our broadened notions of liberty and equality, notions upon which this country was founded and with which it has continued to flourish.
Not so, say the originalists, who seize almost any opportunity to ridicule a progressive ruling based on these vital clauses. Having wiped out the evil of lawful segregation, originalists now seem content to retreat into the hideous refuge of bigotry behind the shield of their misbegotten philosophy. Such was the intent of Justice Scalia in his blistering dissent in Romer v. Evans, which overturned a Colorado constitutional amendment barring protections against discrimination for gay people. “Today’s opinion has no foundation in American constitutional law, and barely pretends to,” growls Scalia. “Striking it down is an act, not of judicial judgment, but of political will.” In fact, equal protection under the law has a rich tradition in American constitutional jurisprudence--hence the appearance of the words “equal protection of the laws” in the Fourteen Amendment itself. But of course it is not equal protection Scalia takes issue with in Romer, but equal protection of a minority he personally dislikes, displaying a startling blindness to his own bigotry through his opinion. This exact kind of prejudice could have stood in the way of the nine brave Justices behind Brown v. Board of Education, but then, those Justices were just that: brave. In hysterically disclaiming the American tradition of equality under the guise of originalism, Scalia has proven himself as prejudiced and pusillanimous as the craven Justices behind Plessy.
This illogical cowardice is not inevitable. Within the niche of originalism that Scalia has carved for himself, the Justice has illustrated a wholehearted willingness to bend the rules of his own philosophy. Just last term, Scalia authored a landmark majority opinion in Brown v. EMA, holding that the sale of violent video games to minors cannot be banned by the state. His opinion hinged on the fact that “the basic principles of freedom of speech...do not vary when a new and different medium for communication appears.” Consequently, merely because video games present violence in a more realistic and interactive manner than ever before, they still qualify for complete First Amendment protections and cannot be censored based on content or lawfully banned for sale to minors.
Does Scalia truly believe--as Alito pondered aloud during oral arguments for that case--that the Framers had video games in mind when crafting the First Amendment? Are we truly to think that the original intent of the Constitution was to allow minors to access virtual worlds of brutality? Of course not. What lies behind Scalia’s EMA opinion is an admirable willingness to accept that the ideas of the Constitution must be adapted to an ever-changing world. Violent video games have replaced violent texts, just as institutionalized bigotry against gays and lesbians has exploded whilst de jure racism has faded. Freedom of speech encompasses all speech, and equal protection covers all citizens; but the country’s most prominent originalist cannot accept that latter--not due to a judicial principle but solely to a personal prejudice.
And so the arguments against marriage equality fade into obscurity under the weight of their own irrationality, and the Constitution stands ready to protect all its country’s citizens--even the ones the Founders could not have imagined would one day exist. Without the pretense of originalism, the legal justifications against marriage equality shrink into oblivion as the arguments in its favor gain serious traction. In this regard, there may be little hope for Roberts and Alito, who have rejected Scalia and Thomas’s originalist extremism in several death penalty cases but who still display an aversion to equal protection for anyone but corporations. Yet to the federal judges who have struck down DOMA, Don’t Ask Don’t Tell, and Proposition 8--several appointed by Republicans--the path to the future is clear. Originalism is fickle, unfeasible, contradictory--and dying. We are now entering the age of equality.