March 10th, 2015
The Cato Institute, a libertarian think-tank, has filed its brief before the Supreme Court in support of marriage equality. In it, Cato seeks to show a distinction between original meaning and original understanding.
Some opponents of equality have taken an ‘original intent’ position and argued that the framers of the Fourteenth Amendment did not intend to include gay people in their promise of equality under the law.
Cato argues that the meaning of equality is the same and that their intent was, indeed, equality. They merely didn’t understand their meaning to include gay people at that time.
This is interesting in that they don’t throw ‘original intent’ out the window, but rather sees intent in terms of principle and objective rather than in terms of some list of people that the framers may have or may not have had in mind.
The lower court erred by focusing on a certain kind of original understanding (the immediate effect supporters “understood” the Fourteenth Amendment to have). This Court has rejected that approach to constitutional interpretation, focusing instead, on original meaning. … In the Fourteenth Amendment context, this Court has asked how the well-established meaning of terminology added to the Constitution in 1868 applies to modern exclusions of new as well as established social groups.
…
Laws can and must have consequences beyond those understood or anticipated by the generation of their promulgation. … As one prominent originalist scholar recently put it, original-meaning originalism “is entirely consistent with updating the application of its fixed principles in light of new factual information. Indeed, such updating is often not only permitted, but actually required by the theory. Otherwise, it will often be impossible to enforce the original meaning under conditions different from those envisioned by the generation that framed and ratified the relevant provision.”
And rather than rely on speculation about intent as imagined by pundits or certain Supreme Court justices, they turn to the language of the framers:
Contemporaries explained the meaning of the Equal Protection Clause in precisely this way. Introducing the Fourteenth Amendment, Senator Jacob Howard said that the Equal Protection Clause “establishes equality before the law, and . . . gives to the humblest, the poorest, and most despised . . . the same rights and the same protection before the law as it gives to the most powerful, the most wealthy, or the most haughty.” The clause plainly “abolishes all class legislation in the States and does away with the injustice of subjecting one caste of persons to a code not applicable to another.” Cong. Globe, 39th Cong.,1st Sess. 2766 (1866) (Sen. Howard); see id. at 2961 (Sen. Poland) (similar). House Speaker Thaddeus Stevens explained that the public meaning of the clause was that “the law which operates upon one man shall operate equally upon all.” Id. at 2459 (emphasis in the original).
The Fourteenth Amendment was not an amendment to give rights to black people, but rather an amendment to prohibit legislatures from establishing castes of people with varying laws and benefits by class. Irrespective of how well that worked, that was its original intent.
Their blog commentary may put it in more approachable terms
Essentially, the Equal Protection Clause means, in 1868 as in 2015, exactly what it says: states cannot have one set of laws for the rich and another for the poor, separate schools for white and black students, or marriage licenses only for opposite-sex couples.
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Ben in Oakland
March 10th, 2015
The originalists don’t actually mean original intent. They never have. Paraphrasing Ambrose Bierce, what is original is that which is convenient. That’s why Scalia thinks that corporations are people and money is speech.
If originalists were actually originalists, the right to keep and bear single shot muskets and double shot pistols would NEVER be infringed.
Josh
March 10th, 2015
Wait, some people don’t think this is obvious? I always interpreted the 14th amendment in this way and can’t imagine how else you could interpret it. They had just gone through a massive shift with slavery going from widespread to illegal, and I’m sure they were aware both in practice and in the abstract that there were other widespread injustices that needed sorting out, so they used idealogical language rather than super-specific “slavery is not allowed” language that would evolve with time and society.
Eric M
March 11th, 2015
Well, it would have been pointless to use the super specific ‘slavery is not allowed’ language considering they already used it in the prior Amendment.
Mark F.
March 11th, 2015
Since Ben brought it up: If it costs money to air my anti-Hillary Clinton ad, infringing on my right to spend that money infringes on my right to free speech.
As for corporations being people: That’s a legal fiction–not a literal fact- recognized by all 9 SCOTUS justices. Corporations have rights by virtue of the fact that they are composed of individuals, although there is some disagreement as to how far these rights go.
That said, Cato’s brief is essentially correct.
Nathaniel
March 11th, 2015
Just an aside, but Mark F., wouldn’t the cost of the airing the ad in the first place be an infringement of speech? I mean, whether you can’t pay to run it because of spending restrictions or because you can’t afford it, the effect is the same. For that matter, wouldn’t my employer’s failure to pay me enough to afford to run such an ad be an infringement of speech? You offer an interesting perspective on a questionable legal maneuver, but it seems to be internally inconsistent in execution.
enough already
March 12th, 2015
The 14th means what Justices Robert and Scalia and Alito think conservative Christians think it means and Justice Thomas echos their thoughts.
They’re not the least bit interested in justice, just oppression.
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