As many of you may know, I am an originalist, but one of the most vexing criticisms of our line of thought is that it is inconsistent with our support of some pretty basic cases that have brought our country into the modern age, most relevantly Brown, Loving, and the sex discrimination cases.
Any serious student of history would have to concede that the drafters of the 14th Amendment did not believe that they were prohibiting segregated schools, anti-miscegenation laws, and laws which discriminated against women. The 14th Amendment itself permitted state laws which limited suffrage to men, and the Congress that passed the 14th Amendment permitted segregated schools in Washington D.C. and did so for the next ninety years.
Nonetheless originalists like Scalia, Bork, and Thomas have all given various defenses of Brown. They give some variant of an argument that regardless of what the framers of that amendment argued, they enacted a higher ideal that was intended to eliminate racial inequality and only through the passage of time did “we” come to realize that segregation was inherently unequal or that laws against interracial marriage did real harm to blacks and not to whites.
I can agree with all of that, but when you go that far, aren’t the originalists doing the exact same thing that they criticize the liberals for in cases like Obergefell? Merely searching for some grand principle and allow the judge to fill in the blanks in contravention of democracy?
I contend that it is an interesting criticism and I do not really have a response yet. What say you?