Defining Original Understanding
I want to talk about an issue that has come up in my adopted home state of Indiana. The legislature is debating whether to put a state constitutional amendment banning same-sex marriage before the voters. In Indiana, a constitutional amendment must be passed by two successive legislatures and approved in a referendum. The same-sex marriage ban was passed by the previous legislature, so if it passed by this one it will go before the voters this Fall.
To win votes from legislators who are concerned about the effect that this amendment might have on domestic partnerships, a bill has been introduced that purports to define the amendment to say that it does not ban domestic partnership benefits. Let’s assume for the sake of argument that this law passes. What impact, if any, should it have on a court that interprets the amendment (assuming that it is ratified)?
You cannot say, of course, that the statute is part of the amendment’s text. Nor can you say that it represents the understanding of the amendment by the previous legislature. Nevertheless, one could say that this law represents the views of this legislature and would form part of the public understanding that voters would have when they vote on the amendment. What is the solution to this interpretive puzzle?