How should we decide dicey constitutional issues? How should we decide whether or not a constitution requires that same-sex couples have the right to get married?

I was thinking about different ways judges interpreting the Constitution, and more specifically, about originalism. I noticed that the prolific judge Richard Posner has a new book out (as he always does), How Judges Think, and I was reading some discussion about it on Volokh.com. One commenter wrote:

[A particular critic of the book] asks why we shouldn’t choose the rules [for interpreting the Constitution] that are most “faithful” to history and text. Rules that are most “faithful” to separation of powers “principles.” Rules that are most “faithful” to the “properly” limited role of the judiciary.

… First, lets examine which of these things can be resolved with reference to the “original public meaning” of the Constitution and nothing else. First, the assertion that there even IS an original public meaning is somewhat retarded, because the “public” is an abstraction, not a real thing. Different individuals that constitute that thing we call the “public” have had different understandings of the Constitutions text (beyond the easy questions) from the very beginning. Exactly whose understanding do we privilege by labeling it as the “original public meaning.” You don’t really get anywhere with this move.

The originalist point of view says that because judges are not democratically elected, they should exercise restraint in interpreting ambiguous parts of the Constitution. As Odysseus straps himself to the mast in order to keep himself from heeding the Sirens’ call, judges need to grasp something so they don’t veer off course. What’s the “safest” way to interpret the Constitution? Once again, for instance: what’s the safest way for a judge to decide, without overstepping the bounds of judging, whether or not a constitution requires that same-sex couples and opposite-sex couples be treated equally for the purpose of marriage?

I tend to agree with the commenter above about the problems of “original public meaning.” But in addition to the question of whether there is an ascertainable “original public meaning,” there’s another question: why should judges try to be faithful to the “original public meaning” of the Constitution in the first place? Why should the “dead hand of the past,” is it is often called, carry more weight than the present?

The response is that the Constitution was ratified by “We the People,” and that when in doubt, you should defer to the people, because the Constitution should mean one specific thing unless “we the people” amend it. If we haven’t amended it, that means we don’t want the Constitution interpreted in a particular way. Judges aren’t elected, so they should defer to these majorities.

But that presumes that the desires of the majority are the most important factor. Yet as Glenn Greenwald points out, “strictly speaking, the U.S. is not a ‘democracy’ as much as it a ‘constitutional republic,’ precisely because constitutional guarantees trump democratic majorities.”

In other words, individual rights are important, and majorities can’t take them away.

The problem, though, is that if judges needn’t follow the majority will, but should instead try to apply constitutional rights, then you’re going to get a different result depending on who the actual judges are.

But what other way works, really? I respect originalism, because it attempts to give judges something to guide those decisions. But originalism doesn’t work because it can’t explain why a narrower interpretation of the Constitution is better than a wider interpretation without appealing to the founders and some notion of safety and conservatism, and in order to do that, it has to explain why those notions are the best things to appeal to.

Is it inherently better for judges to find that there is no constitutional right for same-sex couples to get married, or that there is such a right? You can’t answer that question without making a value judgment. Even if you try to escape that task by making a process-oriented judgment (i.e., when in doubt, listen to “We the People”) instead of a substantive value judgment, the decision to use one process or another still requires a value judgment, because you need a reason for choosing one process over another. So much of the quest of judicial theory is about finding ways for judges to make the safest decisions possible. But you can’t decide what criteria to use for that decisionmaking process without making a value judgment.

Judges can’t escape making value judgments. It’s inherent in judging, because it’s inherent in being human. There really is no solid, absolute answer out there. As strongly as I believe in same-sex couples’ right to get married, that’s the dirty little secret.

In a world without God — which I believe is our world — we humans have to decide all this stuff for ourselves.