An Elegy of Sorts for Epstein

In this forum or in others I previously have mentioned that I respect Professor Richard Epstein’s typically strict adherence to originalism in constitutional cases, but I believe I also have mentioned that there are times when his libertarian streak cause me to part ways with his thinking.  A prime example of the latter caveat can be found in this article Epstein has written for a publication of my brother’s think tank concerning the “gay” marriage cases before the U.S. Supreme Court.  Epstein readily admits how an originalist would rule . . . and then he proceeds to use an alternate rationale of equality before the law to justify ruling the other way.

My question for Professor Epstein would be: don’t you lose the force of your call to originalism in other instances when you appeal to emotionalism in this one?  I don’t think any originalist has liked every decision such an approach would yield, but that isn’t really the point.  The point of originalism is supposed to be that the legitimacy of a legal decision stems from its fidelity to the law.  The law can be changed, but such is not supposed to be achieved by judicial decree.

Justice Kennnedy redefined the term “liberty” in Lawrence v. Texas to such a degree that it would be wholly unrecognized (and probably incomprehensible) to the Founding generation and to the generation that enacted the Fourteenth Amendment.  His definition went like this: “Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.”  I am not altogether sure what “autonomy of self” really means, but it is eerily reminiscent of the “ode to liberty” penned by the plurality in Planned Parenthood v. Casey and infamously known as “the mystery passage”: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”  These definitions might be how people today understand “liberty” (though such an understanding would be impossible to fully implement without ushering in chaos), but they are not the definition of “liberty” embodied in the Constitution.  Professor Epstein admits this (the part about the originalist interpretation, not about the societal consequences of implementing Justice Kennedy’s definition) and then shrugs.

Call me simplistic, but I think you either adhere to the terms of the law or you are the law.  The method of interpretation you employ in personally difficult cases should be the same as it is in the mundane cases if you purport to believe in a government of laws rather than a government of men.  I suppose in one sense it is rather amazing that I have been a lawyer for 12 years and I still believe this to be the case.  But then, I don’t think I could be a lawyer and believe otherwise because then I would be making a living in a profession that does nothing more than enact personal judicial prejudices, which is to say advocate for law that lacks a standard (which is really no law at all).