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Two Views of the Constitution: Originalism vs. Non-Originalism

By Katie Vloet
September 22, 2015

This year’s U.S. Supreme Court decision in Obergefell v. Hodges, regarding the fundamental right to marry, provides a useful lens through which to view the differences between originalist and non-originalist views of the U.S. Constitution, the U-M Constitution Day speaker said.

“It’s really a microcosm of the legal debate about how we interpret the Constitution,” John Bursch said on September 17 at Michigan Law. Bursch argued Obergefell on behalf of Michigan, Tennessee, and Kentucky earlier this year (listen to oral arguments).

Bursch presented benefits and challenges of both interpretations of the Constitution: originalism, in which the meaning of the Constitution is interpreted as fixed as of the time it was enacted, and non-originalism, in which the meaning of the Constitution is viewed as evolving with changes in society and culture.

“Non-originalists would say that the same-sex marriage decision is the perfect example of why courts need some flexibility to depart from the text, structure, and original intent,” Bursch said, and that, although changes were already happening in state laws about same-sex marriage, they were happening “at a snail’s pace.” A non-originalist, he said, would argue “that this case was decided correctly because it focused on the liberty and personal dignity that were the animating principles of the Constitution.”

The originalists—including the four dissenters in the Obergefell opinion—would say that the justices in the majority “used substantive due process to amend the Constitution by judicial fiat,” Bursch said. An originalist also would say that this is a “classic instance of the justices imposing their own personal values about the way that they thought the country should be going rather than an application of simple, neutral, objective criteria. The dissenters pointed out that the democratic process was working; laws were changing. … By taking this issue away from the people who passed [marriage] referendums in all of these states, the majority hurt democracy.”

Bursch was Michigan Solicitor General from 2011 to 2013, in which role he argued Schuette v. Coalition to Defend, a U.S. Supreme Court case involving the validity of a Michigan constitutional provision that prohibits discrimination or the use of preferences based on race, sex, or ethnicity in college admissions, public employment, and public contracting. In all, Bursch argued more than 6 percent of all the cases before the U.S. Supreme Court from March 2011 through 2013.

Constitution Day is observed annually on September 17, the day in 1787 that delegates to the Constitutional Convention signed the document in Philadelphia. The day recognizes all who, by way of birth or naturalization, have become American citizens. Michigan Law hosts the University's celebratory program each year.

Bursch also lamented the public’s lack of knowledge about the Constitution, citing a national survey by the Annenberg Public Policy Center of the University of Pennsylvania that found:

• Only one in three Americans (31 percent) could name all three branches of the U.S. government, while just as many (32 percent) could not identify even one.

• More than one in four Americans (28 percent) incorrectly thinks a 5-4 Supreme Court ruling is sent back either to Congress for reconsideration or to the lower courts for a decision.

• About one in 10 Americans (12 percent) says the Bill of Rights includes the right to own a pet. (It does not.)

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