Solum on “The Federal Marriage Amendment and the False Promise of Originalism”
Lawrence Solum discusses Thomas Colby’s article, The Federal Marriage Amendment and the False Promise of Originalism (Columbia Law Review, Vol. 108, p. 529, 2008) at his Legal Theory Blog:
Colby’s analysis of the FMA shows (assuming he is right about the linguistic facts) that there is at least one possible constitutional provision that contains an important ambiguity that cannot be resolved by resort to conventional semantic meaning. If any of actual provisions of the Constitution had this characteristic, then those provisions would require constitutional construction: that is, their application to at least some cases would require rules of constitutional law that are not provided by the semantic content of the constitutional text.