This Article approaches the originalism debate from a new angle - through the lens of the recently defeated Federal Marriage Amendment. There was profound and very public disagreement about the meaning of the FMA - in particular about the effect that it would have had on civil unions. The inescapable conclusion is that there was no original public meaning of the FMA with respect to the civil unions question. This suggests that often the problem with originalism is not just that the original public meaning of centuries-old provisions of the Constitution is hard to find (especially by judges untrained in history). The problem is frequently much more fundamental, and much more fatal; it is that there was no original public meaning to begin with. It is a natural consequence of the constitution-making process that a constitutional provision addressing a deeply controversial subject can only be enacted when it is drafted with highly ambiguous language so that, rather than possessing a single original meaning, it appeals to disparate factions with divergent understandings of its terms. As such, the central premise of originalism - that, in Justice Scalia's words, the Constitution was enacted with a fixed meaning ascertainable through the usual devices familiar to those learned in the law - is often inaccurate. And for that reason, the central promise of originalism - that, by relying on an objective, discoverable, fixed constitutional meaning, originalism can prevent judges from subverting democracy and the rule of law by reading their personal values into the Constitution - is a false one.
GW Paper Series
GWU Law School Public Law Research Paper No. 417; GWU Legal Studies Research Paper No. 417
Thomas B. Colby, The Federal Marriage Amendment and the False Promise of Originalism, 108 Colum. L. Rev. 529 (2008).