Originalism and Level of Generality

Even if one concedes that the meaning of theConstitution today is its original meaning, at what level ofgenerality should one seek that meaning? In consideringwhether bans on same-sex marriageviolate the FourteenthAmendment, for example, should we seek to determine howthe framers of the Amendment would have answered thatquestion, or should we instead seek to discern the broadprinciple-perhaps "equality" or "no caste-likediscrimination"-that the Amendment objectivelyincorporated, even if application of that principle todaymight produce results that the framers would not haveanticipated? The level of generality at which we ask thequestion almost foreordains the answer. But how should afaithful originalist identify the proper level of generality?The old originalism focused on the original intent of theframers, and it sought to ascertain that intent at the mostnarrow level of generality.

Under this approach, if theframers believed that a particular practice wasconstitutional, then it is constitutional today. The oldoriginalism was principally concerned with judicialconstraint and judicial restraint; confining judges to anarrow historical inquiry promoted the former, andnarrowing the scope of individual rights promoted thelatter. But the old originalism suffered from seriousdefects, including the fact that it could not justify Brownv. Board of Education and other cases that are central toour constitutionalidentity today.The new originalism, which generally seeks theobjective original meaning of the text instead of theoriginal intent and treats as non-binding the framers'expectations about how the text would apply, hasaddressed many of the theoretical defects of the oldoriginalism.

New originalistsgenerally acknowledge thatbecause many of the Constitution's most contestedprovisions are framed in abstract terms, we should seektheir objective original meaning at a correspondingly highlevel of generality. But the higher the level of generality atwhich we seek original meaning, the more room there isfor judicial creativity in applying the Constitution's broadprinciples to issues that arise today.Indeed, by embracing interpretationof the text at a highlevel of generality, new originalists have opened the door to interpretationsthat would have come as a big surpriseto the old originalists:originalistarguments not only thatBrown was correct (notwithstanding the well-establishedview at the time of the framing of the FourteenthAmendment that it would not disturb the common practiceof racially segregated schools), but also that theAmendment prohibits gender discrimination, interferencewith a broad and potentially undefined group ofunenumerated rights, and even bans on same-sexmarriage.These arguments might come as a welcome surprise tothose who are skeptical of originalism, but they also comeat a cost. First, there is little to distinguish theseostensibly originalist arguments from non-originalistapproaches to interpretation, most of which begin byreading the text at a high level of generality and then seekto rely on practical judgment to apply the principlesbehind the text to modern circumstances. Second, neworiginalism's flexible approach to the level of generalitymeans that the approach cannot fulfill its promise ofjudicial constraint.Indeed, in practice originalistshave varied the level ofgenerality at which they seek original meaning, often fromcase to case and issue to issue, in ways that cannot beexplained simply by reference to the level of abstraction atwhich the constitutional text is expressed.

This Articledocuments that phenomenon, and concludes that sooner orlater originalists will have to choose between their claimsof constraint and neutrality, on the one hand, andlegitimacy, on the other.