54:3 Enlightened Originalism

Abstract

This Article proposes a novel, unique theory of constitutional interpretation, namely “enlightened originalism.” According to enlightened originalism, when contemporary constitutional actors give meaning to the terms of the Constitution, they should use the meaning those terms had when the relevant provisions were originally adopted. But we do not find the original meaning of terms such as “equal protection,” “due process,” and “cruel and unusual punishment” by seeking the meaning intended by the relevant framers or ratifiers; nor by looking to any original public meaning. These terms incorporate moral concepts, the meaning of which is objective and independent of the views of any particular cohort of people as to their meaning or application. According to enlightened originalism, the meaning of the concept of equality, for example, has not changed. Rather, we have become more enlightened as to the full ramifications—the true meaning—of equality. We do not say that the meaning of equality has changed since the Founding Fathers accepted slavery alongside the professed self-evident truth of equality. We instead say that the Founding Fathers were wrong about equality. Similarly, we should say that past generations were wrong not to realize that limiting marriage to opposite-sex couples violated the concept of equality incorporated by the Equal Protection Clause. The Constitution has not changed or evolved. It is instead our understanding of the Constitution’s moral requirements that has evolved. Enlightened originalism instructs that fidelity to original meaning does not require us to defer to the flawed moral views of people long since dead, but rather to bring to bear our own moral judgment to determine, as best we can, the objective meaning of the Constitution’s core moral terms.

In its recent landmark decision Obergefell v. Hodges, the Supreme Court declared that prohibitions on same-sex marriage violate the Equal Protection Clause and Due Process Clause of the U.S. Constitution. According to the prevailing scholarly and judicial wisdom, the Court’s opinion is the epitome of the “living constitutionalism” approach to constitutional interpretation. In this Article, I argue that Justice Kennedy’s methodology is better understood as an example of enlightened originalism and demonstrates the effectiveness of enlightened originalism as a theory of constitutional interpretation.