Andrew Koppelman has an interesting piece in the Drake Law Review titled DOMA, Romer, and Rationality. Koppelman argues that while DOMA may have passed the rational basis test in 1996 when enacted, it would not pass the test. Here is the abstract:
It has been objected by many that the Defense of Marriage Act lacks a rational basis because it reflects a bare desire to harm a politically unpopular group. The increasing success of the argument, which has persuaded three federal judges, reveals the hidden normative premises of rational basis analysis, at least whenever that analysis is used to invalidate a statute. Since 1996, when DOMA was passed by overwhelming margins in both houses of Congress, the country’s attitudes toward gay people have evolved rapidly, to the point where this kind of mindless lashing out at gays looks a lot less attractive. In 1996, otherwise reasonable people thought it a pointless waste of taxpayer dollars to look after the basic needs of gay couples and their families. That callousness no longer looks so rational, and increasing numbers are ready to recognize gay relationships. The burden of proof now lies on those who want to defend this discrimination, and it is very hard to articulate a basis for this discrimination that makes sense. The shift is really one of normative priorities. The invocation of “rationality” masks the processes that are actually at work. The changing fortunes of DOMA shows how Constitutional Law develops over time, responding to shifts in the larger culture.
Koppelman also has a brief discussion on the evolution of constitutional principles, relying heavily on Balkin’s concept of redemptive constitutionalism.
Jack Balkin emphasizes the way in which the boundaries of legitimate constitutional argument shift as culture does, so that an argument regarded as crackpot and “off the wall” at one time becomes accepted doctrine later on. Balkin also observes that, because constitutional law is in some respects hostage to cultural shifts, social movements, such as the Civil Rights movement or, more recently, the movement for gun rights, can change the shape of constitutional law.
In practice the meaning of constitutional principles shifts over time. Some constitutional terms, such as “equal protection,” are intentionally abstract, leaving the specification to be worked out by later generations. Mobilized social movements, invoking their own interpretations of those texts, play a legitimate role in determining which specification will ultimately prevail.115 The constitutional protection of sex equality, for example, is the consequence of the feminist movement of the 1970s, which changed the mind of the public in a way that eventually was reflected in the interpretation of the Constitution.116 The triumph of gun rights in District of Columbia v. Heller117 is another example.118
I have written about Balkin’s “off the wall” concept, as well as the importance of “social movements” to developing constitutional law in the context of Randy Barnett’s movement against the individual mandate.
Koppelman notes that this notion of social movements has been very distressing to originalists. I have written critically about this theory in Pandora’s Box.
The idea that social movements shape constitutional law has been particularly distressing to many originalists, who are committed to the idea that the Constitution’s meaning does not shift over time. 119 John McGinnis and Michael Rappaport write, “it is a little difficult to see what is left of a recognizable originalism, not to mention the amendment process, if social movements have such substantial discretion to apply constitutional provisions as they see fit.”120 Steven Calabresi and Livia Fine claim that Balkin’s originalism “substitutes the rule of engaged social movements for the rule of law.”12
But, is an originalist social movement kosher? I argue yes in the sense that it is reaffirming the idea that the Constitution’s meaning does not shift over time–even if the Supreme Court has strayed.
There is a strong social movement afoot today to restore the original meaning of the Constitution, and learn more about how the Constitution was understood by those who ratified it. This type of social movement, I think, is immune to the types of criticisms McGinnis and Rappaport lodge against Balkin’s social movements. Redemptive constitutionalist social movements cannot rely on the text or history of the Constitution (except Balkin’s theories), so they must rely on notions outside of the Constitution to advance their beliefs. In contrast, the originalist social movements–which undoubtedly are trying to influence constitutional law and put stuff “on the wall” that was “off the wall”–at least bears the mantle of grounding that agenda in history.
Moving forward, I think it is important to keep this distinction in mind.