At Liberty Law Blog, Kevin Walsh: How Enduring Originalism Puts Real Jurisprudential Teeth in Originalism’s Bite (guest-blogging for December). From the introduction:
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.
Discussing Justice Kennedy’s opinion in Obergefell v. Hodges and originalism:
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. [ . . . ] 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.
Concluding:
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.
Posted at 6:34 AM