Why Originalism Does Not Strictly Govern Same Sex Marriage

March 23, 2015
Guest Post

by Suja A. Thomas, Professor of Law at the University of Illinois College of Law; author of The Other Branch: Restoring the Jury’s Role in the American Constitution (forthcoming Cambridge University Press).  This post is based on her essay, Text-Bound Originalism (and Why Originalism Does Not Strictly Govern Same Sex Marriage).

Many assume originalism has an important place in the debate about whether states can prohibit same sex marriage.  As the argument goes, the original public meaning of the Equal Protection Clause was the protection of African-Americans, so there is no constitutional barrier to states' prohibition of same sex marriage.  In deciding that states could prohibit same sex marriage, a panel of the U.S. Court of Appeals for the Sixth Circuit recognized the relevance of this originalist interpretation of the Equal Protection Clause along with other arguments for permitting the prohibition of same sex marriage—all of which the Supreme Court will soon consider.

But does originalism have a significant place in the interpretation of the Equal Protection Clause and thus in the same sex marriage decision?  Those advocating the use of originalism believe that originalism must strictly govern the interpretation of the Constitution.  Thus far in arguing for this originalist methodology, however, they have not acknowledged that the text of the Constitution explicitly requires the application of originalism for the interpretation of one provision in the Constitution—the Seventh Amendment.  In ignoring this textual inclusion of originalism and corresponding textual exclusion of originalism elsewhere, originalists have not shown why originalism should strictly govern other parts of the Constitution.

The Seventh Amendment states “[i]n suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”  This text gives certain cases to juries and limits the manner in which judges can question jury findings.  Early on, the Supreme Court recognized that common law in the Seventh Amendment is the English common law of the late 18th century.  So the Amendment preserves the English jury right from the late 18th century and also does not permit judges to question jury findings except as they could in England in the late 18th century.  This tie to the past makes sense because the jury was to serve as a check on the executive-appointed judiciary.  Without a tie to the past, the judiciary could decide to increase its power, thereby eliminating the jury’s authority.

With originalism embedded in the text of the Seventh Amendment, what does this mean for the interpretation of the rest of the Constitution that does not include such references to originalism?  For the Seventh Amendment's text to have meaning and not be superfluous, it must influence the interpretation of the rest of the Constitution.  So originalism cannot strictly govern the interpretation of other parts of the Constitution in the same way that it does the Seventh Amendment.

Many living constitutionalists recognize some role for originalism in the interpretation of the Constitution.  Given that originalism is one tool that has been used to interpret the Constitution from the time of the founding, originalism can continue to be one influence – but not the only one and not a rigid one.  So the past should not decide the issue of whether states’ prohibition of same sex marriage is constitutional.