It would be a mistake to suggest that originalism turns on the secret intentions of the drafters of the language of the law. The point of originalism, textualism, whatever label you want to put on it ? what a good judge always strives to do, and I think we all do ? is strive to understand what the words on the page mean. Not import words that come from us, but apply what you, the people?s representative, the lawmakers, have done. And so when it comes to equal protection of the law, for example, it matters not a whit that some of the drafters of the 14th Amendment were racists, because they were, or sexists, because they were. The law they drafted promises equal protection of the laws to all persons. That?s what they wrote. And the original meaning of those words John Marshall Harlan captured in his dissent in Plessy. An equal protection of the laws doesn?t mean separate in advancing one particular race or gender ? it means ?equal.? And as I said yesterday I think that guarantee ? equal protection of the law?s guarantee in the 14th Amendment, that it took a civil war for this country to win ? is maybe the most radical guarantee in all of the constitution, and maybe in all of human history. It?s a fantastic thing, and that?s why it is chiseled in Vermont marble above the entrance to the Supreme Court of the United States.
