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02/03/2015

More from Ed Whelan on Originalism and Same-Sex Marriage
Michael Ramsey

At NRO, Ed Whelan: Originalism, Marriage, and a Black Sable Ferret (commenting on the debate between Ilya Somin and Orin Kerr noted here, and also this post by me).

In response to my claim that  "a win for same sex marriage on [a purported originalist basis] would be a win for originalism, even if one is not persuaded," he objects:  "It’s no 'win for originalism' to reduce it to something that has no intelligible content, to something that can be manipulated to achieve any result that living constitutionalists desire."

I am not persuaded.  First, the originalist argument for same-sex marriage is not easily transposed into other fields; it depends on the particular history and meaning of the equal protection clause and the changed understanding of sexual orientation.  I would not equate it to breaking down the barriers between originalism and living constitutionalism.

Beyond that, I think it is a win for originalism that everyone (it almost seems) wants to speak its language and invoke its arguments, even if they do so poorly or implausibly.  That is an enormous shift from not so long ago: As I remember too well, this was not the case when I was in law school, and perhaps not even when I began teaching.  At that time, few people (or at least few law professors or Supreme Court advocates) felt it necessary, or even helpful, to make originalist arguments; originalism was the domain of the iconoclast, or worse. True, as it has become more mainstream, it has become part of lawyers' and law professors' arsenals, whether or not they really embrace it.  But I would rather be co-opted than mocked.

RELATED:  Ed Whelan also has two interesting posts on same-sex marriage and judicial supremacy: Madison, Jefferson, and Roy Moore? and Re: Madison, Jefferson, and Roy Moore?  From the latter: 

Consider this hypothetical: In the immediate aftermath of the Supreme Court’s Dred Scott ruling, a federal district court, applying the principle of Dred Scott, enjoins a northern state from enforcing a law providing that a slave who is voluntarily taken by his master into the state thereby becomes free. Must state officials comply with the injunction?

If your answer to the question is no (or maybe not), then you agree (or might agree) with [Alabama Chief Justice Roy Moore, speaking in the context of same-sex marriage] that state officials have a right to resist federal orders they regard as constitutionally unsound (even as you of course might disagree about his application of that principle).

My answer is yes (under the Constitution).  Although the state official might be morally obligated to resign rather than comply, or even (in the hypothetical) act extraconstitutionally.