Rowe on Loving, Lawrence, and Originalism

Jon Rowe has an excellent post about originalism and the application of general principles in constitutional law. As he points out, one of the major problems for conservative originalists is that they often get stuck having to defend the heinous results that their version of originalism would lead to if applied consistently. This is because the same arguments that they typically use against rulings that push out the limits of individual rights today were also used against rulings that no one considers controversial today and that they do not wish to defend. For example, the arguments against gay marriage today are almost word-for-word identical to the arguments against the Loving decision that overturned state laws against interracial marriage. So you find them often trying to draw a principled distinction between such cases and trying to come up with an originalist rationale that would have upheld the results in the older case, but not the results in the newer case. To that end, you had the spectacle of Robert Bork arguing, quite badly, that Dred Scott was not an originalist decision at all, despite the fact that the ruling appeals to precisely the sorts of arguments that conservative originalists make today (see this essay by Sandefur, pointing out that Dred Scott was wrong, but only if one refers to the very principles that Bork himself rejects as a legitimate component of constitutional interpretation).

Rowe discusses this problem as it relates to interracial marriage, and he points to a recent speech by Hadley Arkes, a prominent conservative scholar, who agreed with the argument that one should look to general principles and whether they logically should apply to a specific situation, not merely to whether the framers of a particular law thought those principles should apply there, or would have applied them there at the time they wrote the law. He points out that the framers of the 14th amendment specifically stated that the 14th amendment was not intended to outlaw bans on interracial marriage, and made the exact same argument for why such laws did not violate equal protection that the defendants in the Loving case made, yet the court still ruled that the equal protection clause did make such laws unconstitutional. Was this nothing more than rampant judicial activism, as conservatives argued at the time? Hadley Arkes, at least, admits that it was not. Arkes argues that we can make logical applications of principle regardless of whether those who first stated those principles would have understood the obvious implications:

"None of us can realistically claim to know all of the implications that spring from our own principles...the life of moral judgment is the life in which we are constantly discovering implications of our principles that have previously gone unforeseen. If Trumble and his colleagues had been clear about their own principles, they might have recognized that the same principles that enjoined us not to draw adverse moral inferences about people on the basis of race [lead us to conclude that miscegenation bans impermissibly discriminate on the basis of race].

I agree completely. And this is precisely the flaw in the argument that says that you have to look strictly at the state of law at the time to see how the framers would have applied it and then use that as the standard for evaluating laws today, even if it would violate the stated principle to do so. For example, one could easily look at the Sedition act and conclude that the first amendment's free speech protections were not intended to be applied to newspaper editors, or that they only prohibited prior restraint, not punishment. But this notion completely guts the free speech protections and renders the principle meaningless. And this is why I agree with Harry Jaffa's position that we must look to the principles stated by the founders, not to their compromises on those principles, for guidance. I agree with Jaffa so much on this question that I apply it to him as well, and demand that he apply his passionate advocacy of freedom and equality under the law to gay people, to whom he currently refuses to apply it. Blessed irony.