The fact Justices Thomas and Gorsuch disagree is great development — not only for originalism but for constitutional law generally.
This post answers the question that ended my last one, which is how seriously to take something Justice Kennedy wrote about the Fourteenth Amendment in judicially promulgating a federal constitutional right to same-sex marriage. But the post also does more: it points toward a general framework for thinking about the relationship between the Constitution and constitutional law.
(If you think this is too much for one blog post, you might be right. I hope this post inspires you to read Enduring Originalism, which Jeffrey Pojanowski and I have authored and Georgetown Law Journal has published.)
Let’s begin with Justice Kennedy’s claim that “[t]he generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment … entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.” In the context of Obergefell v. Hodges, this claim operates as a legal justification for treating the Fourteenth Amendment as a font of customary positive law. More specifically, this claim underwrites judicial recognition and enforcement of a newly potent constitutional right requiring the legal reconfiguration of a pre-political institution given determinate bounds by the stipulated positive law of several states. More simply, Justice Kennedy put this claim about the Fourteenth Amendment in his opinion to justify his creation of a new federal constitutional right to same-sex marriage.
If taken as a claim about what the generation that wrote and ratified the Fourteenth Amendment actually “entrusted to future generations,” the claim crumbles under the slightest probing. That’s why it’s hard to take at face value as a serious proposition of original law. And it’s why most people don’t.
The statement is better understood as banal judicial ipse dixit characteristic of a corrupted culture of constitutional adjudication. Justice Kennedy’s four dissenting colleagues each said as much in their dissents, and they were right. Yet statements like Kennedy’s are widely accepted (as well as more widely overlooked along with most of what the Supreme Court actually says in its opinions) as part of a broader passive acquiescence in living constitutionalism.
The truth is that Obergefell v. Hodges rests on a different master concept of the Constitution as positive law than the written Constitution actually posited in law through ratification. The operative master concept of the Constitution as law in Obergefell is one that authorizes judicial promulgation of new constitutional rights under a customary-law conception of the Constitution.
The ratified Constitution, by contrast, is a form of stipulated positive law, authoritatively fixing in place the law that it stipulates. Because of the kind of positive law that it is, the ratified Constitution is to be interpreted and implemented using legal conventions appropriate to the kind of fixed, authoritative, and enduring stipulated positive law that it was designed to be.
The living Constitution of today’s “common-law” constitutionalists is a different beast. It is partially parasitic on the ratified Constitution, but has a separate body and soul from its host. This corrupted master concept has colonized substantial segments of constitutional law in the United States.
In the legal taxonomy we set forth in Enduring Originalism, Jeff Pojanowski and I characterize a statement like Justice Kennedy’s in Obergefell as an “unauthorized departure” from the law of the Constitution. The defining feature of an unauthorized departure is that it rests on a different master concept of the Constitution as law than the ratified Constitution does. We don’t offer a theory of constitutional adjudication, but we do conclude—with some hesitation—that the practically reasonable interpreter should still hold onto, and aim for the enforcement of, the actual stipulated positive law the Constitution introduced into our system, except as changed by means that same law provided. For the more fleshed-out normative arguments how we end up there, you’ll need to read the article.
Don’t expect to find detailed practical prescriptions, though. The practical consequences of adopting this perspective on our constitutional law cannot be specified in the abstract. Different practically reasonable interpreters occupying different roles can and should reach different conclusions about the practical legal significance of statements like Justice Kennedy’s in Obergefell. The rump law of unauthorized departures remains a kind of enforceable law notwithstanding its incompatibility with our ratified Constitution. As a consequence, lower-court judges and government officials subject to almost-immediate injunctions for non-compliance must take different considerations into account than dissenting judges, law professors writing law review articles ,or people reading blog posts.
Unlike the casual non-technical legal positivism of the everyday practitioner, however, the legal profession of Enduring Originalism puts real jurisprudential teeth in originalism’s bite. Precisely because those not entirely immersed in practice don’t need to worry about the short-term consequences for themselves, their clients, or those they serve of publicizing the judicial emperor’s lack of clothes, there is a sense in which professing something other than what everyone is practicing enables greater insight into what our constitutional law really is. Our constitutional law as a whole contains standards external to Supreme Court majorities by which we can assess the constitutional law currently applied by government officials—including those government officials who hold Article III offices—and find it wanting.
Although originalism’s daily “cash value” varies widely from context to context, our constitutional order as a whole is still long on the ratified Constitution. The continued profession of the ratified Constitution as stipulated, fixed, and authoritative fundamental positive law explains originalism’s endurance. And as long as our constitutional order’s long position on the ratified Constitution lasts, non-originalists will have to keep enduring originalism.