While this is a topic belonging more to Admiral’s formidable legal mind than my layman’s reasoning, I feel compelled to write and take comfort from Locke’s stance on the power of reason over the Law.
In the foofaraw over wizards who ride their brooms sidesaddle and oral-fixated rabbits, one Columbia-based law professor took the opportunity to explain “why James Madison is no more of an authority on the meaning of the U.S. Constitution, than J.K. Rowling is on Dumbledore’s sexual orientation.”
Here I hope merely to present Dorf’s arguments in a succinct and fair light. I will offer my own reflections in later parts.
Professor Dorf describes two types of texts: the “neighbor’s grocery list” and fiction. He then adopts the pedestrian position that while a reader may interpret any text as she wishes, a literal or strict interpretive strategy better becomes the grocery list. Acceding to modern literary critical theory, he then notes that, “In the end, though, an author of a work of fiction is, at best, first among equals in interpreting that work. Her intentions do not control the meaning of the text.”
To reach a determination of his question (”Is the U.S. Constitution more like a grocery list or a novel?”), Dorf goes to great, if slightly muddled, lengths to politely discredit originalism as an interpretive strategy: invoking the dead-hand argument (”By what authority do people long dead rule us from the grave?”), and the ignorance of contemporary Americans of their Constitution (”How likely is it that they accept the original public meaning of the text they barely know?”).
He concludes thus:
If these considerations render all forms of originalism problematic, they do not point clearly towards any particular method of constitutional interpretation. One could think that the Constitution’s meaning evolves with changing public mores but still worry that judges are not best situated to express those evolving mores.
In other words, even if some of Us the People think that the Fourteenth Amendment’s Equal Protection Clause is best read in 2007 to permit Dumbledore to marry whomever he chooses, regardless of sex, the Supreme Court might nonetheless decide not to recognize his right to do so until it sees a clearer social consensus on the point. The one thing the Court should not say, however, is that Dumbledore cannot marry a man in 2007 simply because same-sex marriage was not allowed in 1868, when the Fourteenth Amendment was ratified.
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