Theocratic Lawyers Show the Weakness in Original Intent Analysis

The Worldnetdaily seems to love William Olson and Herb Titus, two unabashedly theocratic attorneys. They’ve now written several articles featuring only their analysis of the arguments in the same-sex marriage cases. The most recent one shows why original intent originalism leads to absurd results.

The Supreme Court is considering a case from the 6th Circuit Court of Appeals upholding traditional marriage against five challenges in four states. Herbert W. Titus, who taught constitutional law for 26 years and is the founding dean of Regent Law School, and former Reagan administration official William J. Olson write in their analysis of the case that the opinion of 6th Circuit Judge Jeffrey Sutton begins with “a remarkable observation.”

The judge’s observation “should have resolved the case in that once sentence, but did not,” said Titus and Olson, who practice law together at William J. Olson, P.C.

“Judge Sutton points out that ‘[n]obody in this case … argues that the people who adopted the Fourteenth Amendment understood it to require the states to change the definition of marriage,’” they write.

“Laymen logically deduce that if the Fourteenth Amendment as written had nothing to do with same-sex marriage, that’s the end of the matter,” they said.

“After all, Justice [William] Douglas succinctly described the amendment in his autobiography: ‘The Fourteenth Amendment was passed to give blacks first-class citizenship.’ … But for those lawyers who want unelected judges to set the public policy of our nation, it simply doesn’t matter what the framers intended. And neither does it matter to many judges who are all too willing to give effect to their own political views. Discovering the ‘authorial intent’ of the Framers is only a small part of their concern — a step they sometimes skip over entirely.”

This is a profoundly silly argument. The quote from Douglas could hardly be less relevant. Yes, the primary motivation behind the 14th Amendment was to prevent the states from violating the rights of recently-freed black slaves, but that does not mean that the text applies only to them and only in that situation. The text of the 14th Amendment says:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

It does not say that states cannot pass a law that would “abridge the privileges or immunities of black people” or that they cannot “deny to any black person within its jurisdiction the equal protection of the laws.” It says they can’t do that to any citizen and that all people born or naturalized in the United States are citizens. That this was initially motivated by the need to protect the rights of black people does not mean it doesn’t protect any others who are being treated unequally under the law.

Imagine the list of things this would rule out. According to their version of originalism, the states would be free to refuse to apply the laws equally to men and women. And to refuse to apply the laws equally between whites and every other non-black racial group. They could violate the rights of Latinos all they want, or Asians, as long as they didn’t do it to blacks. This is plainly an absurd reading of the text.

By way of analogy, James Madison was motivated to protect religious freedom by hearing Baptist ministers singing hymns while in jail for being the wrong brand of Christian in his home state of Virginia. Does that mean the First Amendment religion clauses apply only to Baptists? Of course not. This is simply not an argument to be taken seriously.

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  • Artor

    And to refuse to apply the laws equally between whites and every other non-black racial group. They could violate the rights of Latinos all they want, or Asians, as long as they didn’t do it to blacks.

    The Teabagger contingent would consider this a feature, not a bug.

  • donkensler

    Of course, Scalia already has made the argument (in a speech rather than an opinion, IIRC) that the states are under no obligation to treat men and women equally, because the writers of the 14th amendment clearly didn’t intend for it to apply to women, so I’m sure he’d be willing to argue it’s AOK to discriminate against non-black minorities. Tony S never met an argument too absurd to embrace if it will achieve his desired results.

  • John Pieret

    Does that mean the First Amendment religion clauses apply only to Baptists?

    And, strangely enough, Justice Scalia, SCOTUS’ paragon of originalism, somehow found that the Second Amendment applies to revolvers and automatic pistols when the authors of the amendment were only contemplating muzzle-loading black powder firearms.

  • D. C. Sessions

    It’s pretty safe to say that those who drafted, passed, and ratified the Fourteenth also did not envision it applying to corporations. So, for this argument, to prevail, implies either an enormous reversal of more than eighty years of Fourteenth Amendment jurisprudence (including Citizens United) or else a degree of special pleading that might strain even Scalia’s abilities to reason from his conclusions back to his fundamental principles.

  • John Pieret

    donkensler:

    [Scalia said] the writers of the 14th amendment clearly didn’t intend for it to apply to women

    Scalia may have also said it in a speech, but here’s an interview where he said exactly that:

    http://www.callawyer.com/Clstory.cfm?eid=913358

  • Alverant

    I thought the FF didn’t want a standing military too, that’s why we have the “well regulated militia”. So maybe those lawyers should call for the air force to be disbanded. Not only is it against the FF’s intent but flying machines aren’t mentioned in the Constitution either.

  • howardhershey

    And it is worth pointing out that the people who wrote and supported the 14th specifically thought (or at least argued during the debate) that states could ban *all* inter-racial marriage, including that between blacks and whites.

  • colnago80

    Re Alverant @ #6

    It could be argued that aircraft associated with the army and the navy are really just extensions to the artillery components of those services by increasing the range. The real issue is that a separate airforce is nowhere contemplated in the Constitution, and is therefore unconstitutional on a strict interpretation where only an army and a navy are explicitly mentioned.

  • gshelley

    Imagine the list of things this would rule out. According to their version of originalism, the states would be free to refuse to apply the laws equally to men and women. And to refuse to apply the laws equally between whites and every other non-black racial group. They could violate the rights of Latinos all they want, or Asians, as long as they didn’t do it to blacks. This is plainly an absurd reading of the text.

    Well yes. Didn’t Scalia used to argue this?

    Simplest thing would be to have a new amendment to fix it

    I suggest using the following text

    No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

  • doublereed

    I don’t really get it. Does that mean you can pass an amendment with the exact same text and it would be mean something different? Which I know is the joke in @9 but isn’t that seriously the idea here?

    Like should we just re-pass the bill of rights? And in some cases I do think people’s rights should be more spelled out in the constitution. Like the right to bodily autonomy, the right to education, and the right to healthcare.

  • sugarfrosted

    It’s almost like original intent is special pleading. Oh wait. I think the supreme court needs more active mocking of Scalia whenever he brings it up. #JohnStewartForSupremeCourtJustice

  • blf

    If “original intent” is so overriding, then ALL clauses and amendments could use the following language: “No.” Or “Uga-bugha!” Or…

    The meaning is clear and obvious, thereby also reducing lawyer’s fees, court time, arguments, indecision, the time until the reptilians invade and conquer, and the time until the bottle of vin is empty.

  • gshelley

    @10

    I don’t actually know, but if original intent is what matters, then repassing with the same wording would change it to the modern understanding

    Though of course, people would still argue about what that was, and insist that no one thought it would mean covering the gays (conveniently ignoring all the people who argue that we couldn’t do that because it would cover all the gays)

  • jws1

    The concept of original intent seems to fly in the face of the idea of “a nation of laws, not a nation of people.”

    So why does Scalia et. al. hate America so much?