The identification and protection of fundamental rights is an enduring part of the judicial duty to interpret the Constitution. That responsibility, however, “has not been reduced to any formula.” Poe v. Ullman, 367 U. S. 497, 542 (1961) (Harlan, J., dissenting). Rather, it requires courts to exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect. See ibid. That process is guided by many of the same considerations relevant to analysis of other constitutional provisions that set forth broad principles rather than specific requirements. History and tradition guide and discipline this inquiry but do not set its outer boundaries. See Lawrence, supra, at 572. That method respects our history and learns from it without allowing the past alone to rule the present.
The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.
From President Obama’s Response:
Our nation was founded on a bedrock principle that we are all created equal. The project of each generation is to bridge the meaning of those founding words with the realities of changing times — a never-ending quest to ensure those words ring true for every single American.
In contrast to Justice Kennedy and President Obama, we would do well to remember, and think deeply and wisely on the fact that an author’s meaning is stable, and is not open for us to change. E. D. Hirsch explains this so well and so simply with respect to the interpretation of literature, law, and the Scriptures (and his work should be required reading for any intelligent person):
If textual meaning itself could change, contemporary readers would lack a basis for agreement or disagreement. No one would bother seriously to discuss such a protean object. The significance of textual meaning has no foundation and no objectivity unless meaning itself is un- changing. To fuse meaning and significance, or interpretation and criticism by the conception of an autonomous, living, changing meaning does not really free the reader from the shackles of historicism; it simply destroys the basis both for any agreement among readers and for any objective study whatever (Validity in Interpretation, 213-214).
Hirsch’s ideas should be obvious to the five Justices who wrote today’s Opinion. I find it significant that Justice Kennedy refuses to define marriage as something enjoyed between a man and woman, but instead assumes marriage is just a matter of feelings of any one person toward another. I find it hard to see how one assumes meaning then says we cannot assume that meaning is determinative.