Theocratic Lawyers Show the Weakness in Original Intent Analysis

Theocratic Lawyers Show the Weakness in Original Intent Analysis June 15, 2015

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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