How often do we hear those who complain about “judicial activism” say. “Where in the Constitution does it say separation of church and state, or the right to privacy or freedom of association or right to a fair trial”?
The Framers wrote in broad terms, and we should take them at their word.
In his confirmation hearings before the Senate Judiciary Committee, John Roberts was asked if he was an originalist. He answered:
“I think it's very important to define these terms. Let's take the originalist approach. I do think that the framers' intent is the guiding principle that should apply.
However, you do need to be very careful and make sure that you're giving appropriate weight to the words that the framers used to embody their intent.
I think of, in particular, the Fourth Amendment (sic) and the equal protection clause. There are some who may think they're being originalists who will tell you, Well, the problem they were getting at were the rights of the newly freed slaves. And so that's all that the equal protection clause applies to.
But, in fact, they didn't write the equal protection clause in such narrow terms. They wrote more generally.
That may have been a particular problem motivating them, but they chose to use broader terms, and we should take them at their word, so that is perfectly appropriate to apply the equal protection clause to issues of gender and other types of discrimination beyond the racial discrimination that was obviously the driving force behind it. That is an originalist view because you're looking at the original intent as expressed in the words that they chose. And their intent was to use broad language, not to use narrow language.”
But what did the framers of the 14th amendment intend? Does it matter? Do you think the framers of the 14th thought that their broad language would later be used in Loving v.
One of those framers, Illinois Republican Senator Lyman Trumbull had this to say
"If the negro is denied the right to marry a white person, [and] the white person is equally denied the right to marry the negro[,] I see no discrimination against either." Neither the Civil Rights Act of 1866 nor the Fourteenth Amendment would have passed if it had intended to strike down laws against interracial marriage.”
And yet, the court ruled otherwise, as well it should.
Because the Framers wrote in broad terms, and we should take them at their word.
So, even though we can be quite certain that the Framers never gave same sex marriage a thought, the broad language they chose precludes us from construing their words in narrow terms.
We should take them at their word.