Yet, I still feel somewhat conflicted by this result.  A huge part of me thinks that it’s great because people should be allowed to marry whoever they want.  But another side of me questions the way in which this legal obstacle in Iowa was removed.

It’s worth comparing this decision to Lawrence v. Texas, which I’ve already written was wrongly decided.  In Lawrence, Justice Kennedy’s majority opinion was rooted in an almost metaphysical interpretation of the Fourteenth Amendment’s Due Process Clause.  Sexuality, according to the Court, is a protected liberty under the principle of substantive due process.  But the Iowa Supreme Court did not strike down its same sex marriage bans on that rationale.  Rather, they adopted the reasoning of Justice O’Connor’s concurring opinion in Lawrence that such statutes violate Iowa’s equal protection clause.

At first glance, this decision seems less problematic than Lawrence.  Equal protection, in principle, seems like a more appropriate legal ground upon which to base invalidation of gay marriage bans.  Furthermore, this is by and large the state making the decision for itself.  However, I still feel that such steps should be taken by legislatures rather than courts.  Iowa has had an equal protection component to its constitution since 1857.  Just as the federal constitution, it was undoubtedly passed having protection of African Americans in mind.  Nobody would have thought in 1857 that the equal protection clause in the Iowa Constitution (or the United States Constitution 11 years later) was intended to do away with the traditional understanding of marriage.

Iowa’s Supreme Court fully recognized this.  Its opinion explicitly adopted the position that “equal protection can only be defined by the standards of each generation.”  This is basically an argument for a living constitution.  While such a theory seems to make a lot of sense, it entrusts nine judges with the task of keeping their finger to the pulse of social norm.  This I have a problem with.

When something like traditional marriage is so engrained in society, redefining it should be the task of the people through the democratic process.  As much as I’m happy for gays and lesbians in Iowa, I can’t help but be disappointed in the process through which they’ve achieved this basic right to marry the person they want.

In a previous post, I argued that originalism as a method of constitutional interpretation can coexist with contemporary progressive values that are often held by those who oppose originalism.  To somewhat rearticulate my point, if we have a Constitution, we ought to treat it as such regardless of how inconvenient it may be in our pursuits of social change.  However, that does not mean we can’t address whether its provisions, while supreme and unyielding law, make normative sense in the 21st century.

Perhaps the biggest theme in the original Constitution is the principle of federalism.  While the Constitution lays out a framework for the operation of a federal government, it is in large part an exception (albeit a huge one) to the general proposition that power lies with the states.  States were originally free to govern as they saw fit so long as they did not offend “the supreme Law of the Land.”  Considering (1) the Bill of Rights were not at first binding upon the states, (2) the nature of early interstate commerce (the legal basis of contemporary federal legislation), and (3) the absence of the XIV Amendment, this gave states a whole lot of room to pass a wide range of laws.

But more than any other constitutional principle, American federalism has been almost radically transformed.  The Civil War and its aftermath led to the XIV Amendment, giving the federal government the power to enforce equal protection of the laws and apply the majority of the Bill of Rights to the states.  The New Deal redefined our understanding of “interstate commerce” and hugely expanded one of the few constitutional bases upon which Congress may act.  So while the original Constitution reserved the majority of power for the states, both the XIV Amendment and the Supreme Court’s expansion of “interstate commerce” carved a huge amount of that original power from the states and essentially handed it to the federal government.

Notwithstanding its transformation over the centuries, federalism remains a huge component in our constitutional scheme.  But if we were to start a Constitution from scratch today, how would principles of federalism fit in? Is federalism the best structure for governing a 21st century America?

My initial reaction is that I have no earthly clue.  My gut tells me that regionalism and state sovereignty were more sensitive issues back then given how much more we are interconnected these days.  The fear of a strong centralized government was also fresh in the minds of the founders.  The issue of slavery exacerbated conflicts of interests among the states and they refused to succumb to the idea of a federal government capable of imposing its will uniformly upon them.  The dynamic in those days was thus radically different.

But perhaps the way in which federalism has constitutionally expanded along side modernization is an accurate reflection of the balance needed in contemporary society.  Even if states were abolished, the federal government would need to govern locally and there are still unique attributes that accompany America’s localities that warrant different laws.  So is the question then whether we want the federal government making local law or separate state governments making local law?  How do either of these situations affect the way in which localities are governed?

These questions obviously raise an enormous amount of other issues, most of which I can’t think of.  One of them is whether Congress’s power to pass laws should be largely pinned to regulating interestate commerce.  It is so easy to cite interstate commerce as a justification for passing laws because virtually everything affects interstate commerce in the abstract.  The contemporary Congress seems to pass laws that go well beyond simply regulating interstate commerce.

Let me then shut up and leave you with this question: If you were to write a constitutional provision reflecting Congress’s actual authority under the commerce clause, how would you phrase it?  In other words, what does Congress’s power to regulate interstate commerce actually empower Congress to do?

His many opponents argue that his originalism is simply a cloak for his backward, homophobic beliefs.  This argument is neither convincing nor relevant.  There is a common misconception among law students that originalism necessarily connotes socially conservative values.  Yet even the most fervent champion of gay and abortion rights can be an originalist.  For the sake of this post, I’m going to say that I’m one of these people.

The words privacy, abortion, and homosexuality are nowhere in the United States Constitution.  However, the Supreme Court in 1965 interpreted a “right to privacy” into its text.  The Court concluded in Griswold v. Connecticut that “the First Amendment has a penumbra where privacy is protected from governmental intrusion.”  Eight years later, the Supreme Court held in Roe v. Wade that state laws that completely outlawed abortion violated this newly created “right to privacy.”  This effectively guaranteed all women a limited “right to choose” and made the polarizing issue of abortion a matter of constitutional law.  Before this case, states were free to choose for themselves whether and to what degree abortion should be permitted.

In 2003, the Supreme Court held in Lawrence v. Texas that laws banning homosexual sodomy were unconstitutional.  While the Court stopped short of articulating a fundamental right to engage in homosexual sodomy, it nonetheless concluded that such laws violated principles of substantive due process under the Fourteenth Amendment.

Originalists, such as Justice Scalia, believe these two cases were wrongly decided.  In his dissenting opinion in Lawrence, Justice Scalia had no trouble concluding that laws banning homosexual sodomy were constitutionally permissible because the 13 original states all had such laws in place at the time the Constitution was ratified.  Essentially, laws such as these had always been on the books.  This, along with the fact that the constitution’s text was silent on the issue, led Justice Scalia to conclude not that gays and lesbians must live under such laws, but rather that change must be sought through the democratic process and not the Supreme Court.  The thrust of his argument is best captured by the following paragraph:

Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means. Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best. That homosexuals have achieved some success in that enterprise is attested to by the fact that Texas is one of the few remaining States that criminalize private, consensual homosexual acts. But persuading one’s fellow citizens is one thing, and imposing one’s views in absence of democratic majority will is something else. I would no more require a State to criminalize homosexual acts–or, for that matter, display any moral disapprobation of them–than I would forbid it to do so. What Texas has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new “constitutional right” by a Court that is impatient of democratic change. It is indeed true that “later generations can see that laws once thought necessary and proper in fact serve only to oppress,” . . . and when that happens, later generations can repeal those laws. But it is the premise of our system that those judgments are to be made by the people, and not imposed by a governing caste that knows best.

Justice Scalia’s main point is that when the Constitution is silent on an issue – that is, when the original interpretation of the Constitution is silent on an issue – the democratic process is the vehicle through which change regarding that issue should occur.  Now, is this in conflict with my pro-choice, pro-gay marriage beliefs?  Not one bit.  Let’s assume for the moment that Roe and Lawrence were never decided.  I wouldn’t support any state assemblymen who stood for either homosexual sodomy laws or outright abortion bans.  I would side with any campaign to have such laws wiped away in my state.  I would even support bonafide constitutional amendments that protected a woman’s basic right to choose and guaranteed gay marriage.  But I would not support challenging any such laws on manipulative interpretations of our highest law.

Originalism can coexist with progressive values.  The point of originalism is not to cling to old outdated views, but to cling to the original meaning of the constitution and allow the democratic process to steer the wheel of change.