Obergefell v. Hodges and the Meaning of Liberty

Should our understanding of what the Constitution requires change over time? In the wake of the Supreme Court's decision concerning same-sex marriage in Obergefell v. Hodges, George Will and Matthew Franck have written thoughtful pieces that probe that fundamental question. Will endorses Justice Kennedy's assertion in Obergefell that "[t]he generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning." In response, Franck criticizes Will for endorsing "living constitutionalism" and accuses Will of "cheerily greeting the rewriting of the Constitution."

Regardless of whether one agrees or disagrees with the Court's holding in Obergefell, Justice Kennedy's assertion expresses an insight that is essential to constitutional interpretation, and Will is right to stand behind it. As the late Robert Bork once put it, "It is the task of the judge in this generation to discern how the Framers' values, defined in the context of the world they knew, apply to the world we know." In order to implement those values, judicial engagement--disciplined, reason-guided inquiry into constitutional meaning, together with an honest assessment of the government's ends and means in every case--is required.

Franck is correct that the meaning of constitutional text remains constant over time. It does not turn upon popular or political will. The meaning of "liberty," or "due process of law," or "freedom of speech" is not defined by legislative majorities, public opinion polls, or five people in robes. The meaning of constitutional text is not subjective but objective, discovered rather than made. Judges who decide cases on the basis of philosophical principles alien to the Constitution are no longer applying the law but inventing it and thus imposing their ideas of what the law should be on the rest of us.

But to say that constitutional meaning does not change is not to say that applying the concepts set forth in the Constitution to concrete cases today will, or ought to, yield results consistent with the expectations of the Framers. All conceptual terms--from the Fourth Amendment's proscription of "unreasonable" searches and seizures to the Fourteenth Amendment's requirement of "equal protection of the laws" -- depend upon a rational assessment of the world in which they operate. This is true--and obvious--outside of constitutional law as well. For example, when we speak of "mammals" we are referring to all animals with a particular set of traits, including hair and the ability to produce milk for live young. The set of animals that we identify as mammals should and does change over time as we learn more about them. On the basis of similar reasoning, the Court has properly concluded that modern forms of communication unfathomable to the Framers are protected by the First Amendment's guarantee of "freedom of speech."

I have encountered no serious argument that anyone who drafted and ratified the Fourteenth Amendment would have regarded the failure to recognize same-sex couples' marriage contracts as a deprivation of liberty without due process of law or a denial of the equal protection of the laws. But that is not dispositive. There is abundant evidence that the Fourteenth Amendment was designed to authorize the federal government (and the federal judiciary) to prevent the states from violating natural rights and certain civil rights (like the right to make and enforce contracts) as well as to prohibit discrimination that serves no legitimate end of government. The Obergefell Court was thus correct to make a genuine effort to determine whether or not choosing to issue marriage licenses to opposite-sex couples but not same-sex couples furthers any legitimate government end today.

Disagreement with Will's (and Kennedy's) understanding of what the Fourteenth Amendment requires today is reasonable. But it is entirely appropriate for our understanding of what the Constitution requires to change as we apply fixed principles to changing facts and as our own understanding of those facts develops. James Madison, who offered a robust defense of originalism in an 1824 letter to Henry Lee that Will and Franck both draw upon, appears to have changed his own views concerning the constitutionality of practices that were accepted when the Constitution was framed, including the practice of employing legislative chaplains.

In the final analysis, fidelity to the Constitution requires fidelity to the law itself, not any particular group of people's subjective understanding of it or expectations about it, whether those people are long dead or still living. Judges must engage in a genuine, impartial search for the truth concerning the law's objective meaning and require the government to demonstrate the constitutional legitimacy of its actions here and now, with reliable evidence. Different cases will bring different results--including results about which reasonable people may sometimes differ; but such judicial engagement is needed to secure the blessings of liberty in the world we know.