A ‘Living’ Constitution and the Right to Marry

I would love to hear thoughts on this article.

As recently as 20 years ago, it would have been pretty preposterous to argue that the U.S. Constitution requires states to recognize same-sex marriages. But there is a good chance that this summer, the Supreme Court will rule that it does.

To the many people who believe in judicial restraint, or in following the original understanding of the document, such a dramatic shift in the Constitution’s meaning is alarming, even illegitimate. Are they right?

A vivid answer can be found in an important but widely neglected speech from one of the greatest figures in the history of America law: Justice Thurgood Marshall. The speech is almost unimaginable today, certainly from a Supreme Court justice, and perhaps from a national leader of either political party. But it tells us a lot about the arc of history and the nature of constitutional law. (Disclosure: I was a clerk for Justice Marshall during the 1979 Supreme Court term.)

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