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The "Originalism" Bait-and-Switch
A conservative majority on the Supreme Court appears to be poised to strike down Roe v. Wade, the 1973 decision that guaranteed a right to abortion. This will undoubtedly unleash—indeed, it already has unleashed—a political battle royale in which state legislatures and Congress rush to pass either new restrictions on abortion or new protections for it.
What is even more significant than the abandonment of this particular right is what the ruling implies for the constitutional protection of individual rights as such. A close look at a leaked draft of Dobbs v. Jackson Women’s Health Organization suggests that “originalist” jurisprudence, rather than being a counterbalance to the increasingly influential illiberal current on the right, has been swept down into that current. Conservatives are in the process of replacing the original constitutional philosophy of individual rights with traditionalism.
To understand this, we have to look at the reasoning in this draft and how it relates to three important concepts in constitutional interpretation: substantive due process, incorporation, and unenumerated rights.
We’ll take those issues in order, but first a side note on the fact of the leak itself. There is good reason to keep certain kinds of deliberations private to avoid undue influence by public debate or outside pressure. This is why George Washington, for example, insisted that members of the Constitutional Convention keep their deliberations confidential. In the current case, such outside pressure is probably exactly what the leaker was hoping for, in the hope that it would intimidate one of the conservative justices into recanting. He or she is almost certain to be disappointed. In any case, the question of the propriety of the leak is secondary to the question of what the Court’s decision will mean—and Barone’s Law predicts that the degree of your outrage at the former depends almost entirely on your position on the latter.
Now let’s start with substantive due process. The Fifth Amendment guarantees that “No person shall be…deprived of life, liberty, or property, without due process of law.” But this doesn’t just mean that the state has to go through the right procedures and file the right paperwork. There are certain laws that are inherently illegitimate in their substance because they violate fundamental rights and guarantees at the very basis of government. In effect, they cannot be enforced through the “due process of law” because they usurp powers that are beyond what the law is allowed.
We all understand this with regard to rights explicitly named in the Constitution, if “Congress shall make no law…abridging the freedom of speech, or of the press,” and someone tries to enforce such an abridgment, this is not the “due process of law” because the Constitution allows no such law. (For more on substantive due process, see my comments on this from just after the oral hearings on Dobbs, with help from an excellent explainer by Tim Sandefur.)
Substantive due process is supported by the doctrine of incorporation. The 14th Amendment states that “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The 14th Amendment was passed just after the Civil War, which was fought to secure for enslaved Americans the rights and protections guaranteed under the US constitution, which had been denied to them by the laws of the Southern states. The new amendment made this arrangement explicit, making it clear that individuals have recourse to the federal courts to protect their rights against state governments. So if something is found to be a right protected by substantive due process, it is protected against state-level laws—which is precisely what Roe guaranteed for the right to abortion.
But substantive due process is rarely invoked for cases that involve a right explicitly guaranteed in the Constitution. A suit to lift a restriction on freedom of speech, for example, would not be treated primarily as a “substantive due process case” but as a “First Amendment case.” Substantive due process tends to come up when the courts are dealing with a right that is not explicitly named in the Constitution.
But if the right is not named in the Constitution, how can the Constitution protect it? Enter the doctrine of unenumerated rights. The Ninth Amendment reads: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." James Madison had originally opposed the creation of a Bill of Rights for precisely this reason. He feared that if the Constitution listed some rights, singling them out for special protection, politicians would assume that those were the only protected rights and that everything else was fair game. So when he drafted the Bill of Rights, he inserted the Ninth Amendment to make the issue clear.
The paradox of the Ninth Amendment is that the Constitution explicitly guarantees protection for rights that it does not explicitly name. How, then, do we tell what those rights are?
The best short summary of the Ninth Amendment was given to me years ago by my friend Jack Wakeland: The Ninth Amendment amounts to the phrase, “[insert political philosophy here].” In protecting rights that are unenumerated, it invites judges to refer to a political philosophy that explains the source of rights and gives us a basis for determining what those rights are. This was not an invitation for “judicial activism” or subjective judgment, because the Founders knew which political philosophy they intended us to use: the Enlightenment-era natural rights theory they learned from John Locke, Algernon Sidney, Hugo Grotius, and others. These ideas were universally accepted among the American revolutionaries, and they assumed we would continue to rely on them in subsequent generations.
By the late 19th and early 20th Century, however, natural rights theory had been largely abandoned, and as a consequence, the notions of substantive due process and unenumerated rights largely disappeared for a while from the country’s jurisprudence. Eventually, these doctrines made a very limited a comeback, but in the absence of a widely accepted natural rights philosophy, each side of our political debate needs to draw from some other philosophical standard for determining our unenumerated rights.
For the left, the working standard is social consensus. The source of rights, in this view, is that they are granted to us by society. So any unenumerated rights—that is, any newly recognized rights not already given explicit protections—are based on “the evolving standards of decency that mark the progress of a maturing society,” as one Supreme Court ruling famously put it. This is the theory of the “living Constitution,” in which the meaning of constitutional guarantees evolves to match the prevailing social consensus. In practice, of course, this means not an actual social consensus but rather a Supreme Court justice’s personal feelings about what that consensus ought to be.
The right hates the subjectivism of the “living Constitution” theory. So what is their view of the basis of rights? The draft ruling in Dobbs gives us the answer: tradition.
According to the draft written by Justice Alito, “the Due Process Clause of the Fourteenth Amendment…has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be ‘deeply rooted in this nation’s history and tradition’ and ‘implicit in the concept of ordered liberty.’” These quotes are from Washington v. Glucksberg, a 1997 Supreme Court ruling that refused constitutional protection for the right to assisted suicide.
Those are two different ideas—“deeply rooted in this nation’s history and tradition” versus “implicit in the concept of ordered liberty.” (Even “ordered liberty” is an ambiguous concept. Later, Alito writes that “Ordered liberty sets limits and defines the boundary between competing interests,” which is to say that it “balances” the individual’s interest in liberty with the state’s interest in control.) Yet the draft opinion for Dobbs conflates the two issues, treating “history and tradition” as the de facto standard for determining what is implicit in the concept of liberty. Alito makes this clear. “History and tradition,” he writes, “map the essential components of our Nation’s concept of ordered liberty.” Why only history and tradition?
Historical inquiries of this nature are essential whenever we are asked to recognize a new component of the “liberty” protected by the Due Process Clause because the term “liberty” alone provides little guidance.
See what I mean about how natural rights philosophy has ceased to be the guiding principle for judicial interpretation? “Liberty” itself is now regarded as an empty or meaningless term.
But the conservatives’ appeal to history and tradition contains a little subjectivism of its own, as seen in the fact that Alito denounces as an example of “freewheeling judicial policy making” the “discredited decision” Lochner v. New York. Lochner and related decisions found that substantive due process protects the rights of property ownership and freedom of contract—but how can anyone claim that those rights are not “deeply rooted in history”? The protection of property rights was regarded by natural rights theorists, by the revolutionaries who remade the English system of government in 1689, and by our Founding Fathers as being at the very basis of the legitimate powers of government. But the conservatives find in “tradition” what they want to find—and refuse to find in it what they don’t want to find.
This is also a chicken coming home to roost for the left. It was in the New Deal era that FDR’s appointees supposedly “discredited” Lochner. They rejected the protection of unenumerated rights and killed off the last vestiges of natural rights theory in order to remove all limits on economic regulations. It was left to the post-New Deal conservatives to embrace the attack on Lochner and use it as a precedent to reject most other unenumerated rights, including the ones the left now wants the Court to defend.
The right’s rejection of Lochner reflects a wider dilemma of conservatism as an intellectual movement. Defending “tradition,” for American conservatives, has usually included the idea that they were defending American traditions, which includes the classical liberalism of the Founders and the natural rights philosophy they embraced. But what if you reject the natural rights philosophy and have only tradition left? That’s exactly what we see in this draft opinion.
This turns the Founders’ whole approach upside down. In rebelling against English rule, the Founders brokefrom tradition on many issues. “Deeply rooted tradition” favored monarchy, entail and primogeniture, an established church, slavery, and a great many other things that the Founders quickly set out to abolish when they declared independence. (They were divided on slavery, of course, but it is significant that the first ban on slavery in the English-speaking world was passed in Vermont in 1777.)
This reflects a wider intellectual pattern behind the founding. One of the themes of historian Brad Thompson’s excellent study on the ideological background of the Declaration of Independence, America’s Revolutionary Mind, is the way in which the Founders rejected a purely traditionalist view of rights. As I summarized it, “the Founders moved from a historical concept of rights, invoking traditional privileges won over centuries as part of the unwritten English constitution, to a philosophical concept of rights, one based not on tradition but on a consideration of the basic nature of man.” As Thompson puts it, this was a change “from the traditional rights of Englishmen to the rights of nature.”
Today’s conservatives are reversing this intellectual transformation, moving us back from the rights of nature to the traditional rights of Englishmen. This is why, when confronted with a question about the unenumerated rights implicit in “liberty,” they scan through “700 years of Anglo-American common law tradition” and thumb through their editions of William Blackstone’s 1770 Commentaries on the Laws of England. And if they can’t find it there, then it just doesn’t exist.
Under this approach, however, the concept of unenumerated rights would simply be incomprehensible. If a right were supported by tradition, then it would already be so well-known and established that it would have been enumerated in the first place.
The whole point of referring unenumerated rights was to cover issues that had not yet been argued and explicated. By their nature, some unenumerated rights are going to be recognized only later on, as court cases draw out new implications from the philosophy of individual rights. Why would these rights not be explicated earlier? In some cases, it is because new rights become relevant only in the light of new technology (such as new medical technology) or new social circumstances. In other cases, it is because a right might never have been contested before, either because it was never threatened or because no one dared to defend it. There are rights that never made it into the courts simply because its advocates knew they would never receive a fair hearing due to deeply ingrained prejudice. Laws criminalizing homosexuality, for example, persisted into very early years of the 21st Century, not because they had a firm basis in the Constitution or in natural rights theory, but simply because a despised minority did not yet feel strong enough to challenge them.
In reading recently about the iconoclastic film star Mae West, I discovered that she was jailed in 1927 because a play she had written and starred in was deemed “indecent,” thanks to her irreverence and trademark double-entendres. We would recognize this today as a straightforward violation of the First Amendment. Should we reject that interpretation because the “traditions” of a more puritanical age declined to protect freedom of speech?
To assert that rights are not rights unless they have been recognized in that exact form by centuries of tradition would, in effect, make the concepts of “rights” and “liberty” empty, reducing them only to a list of previously recognized and catalogued historical privileges that provide no guidance for future cases—which is exactly how Alito treats them.
The context for Roe v. Wade makes this clearer. After decades of contentious argument over this one ruling, we tend to think of it as standing on its own. But Roe was part of a constellation of cases in the middle of the 20th Century that were called upon to settle previously uncontested issues relating to the right to privacy or autonomy. “Privacy,” in this context, does not refer merely to the ability to shield one’s personal life from public scrutiny. It refers to the idea that there is such a thing as a purely personal sphere of action, an area in which government may not legitimately overrule the individual’s choices.
Over a period of several decades, a series of Supreme Court decisions recognized the existence of such a private sphere. Griswold v. Connecticut (1965) struck down bans on contraceptives; Loving v. Virginia (1967) struck down bans on interracial marriage; other rulings established protections against involuntary medical procedures; and one of the last, Lawrence v. Texas (2003) struck down state laws criminalizing homosexual intercourse. These rulings declared matters relating to sex, marriage, procreation, and medical treatment to be within the private realm of an individual’s autonomous action—and Roe v. Wade was right at the intersection of all of these issues.
This raises the prospect that the Supreme Court cannot overturn Roe without undoing or throwing into doubt all of those other issue. Justice Alito attempts to draw a “sharp” and “critical” distinction between abortion and everything else. But if “tradition” is the only basis for unenumerated rights, then it is difficult to maintain such a dividing line.
Moreover, politicians are already cruising right over that line. Indiana Senator Mike Braun is on record back in March saying that if Roe is overturned, interracial marriage would also have to be left to the states. A recent Louisiana abortion ban is written so broadly that it might ban some forms of contraception, and when pressed on that same question, the governor of Mississippi declined to rule it out.
The illiberal nationalist conservatives have spent the past few years railing against the autonomous individual. We are now seeing this rejection of autonomy embodied in a Supreme Court ruling. Just as New Deal jurists rejected Lochner to make room for regulation of the economy, so conservative jurists are overturning Roe to make room for regulation of our personal lives. The only question that remains is how far they will try to apply that precedent.
I hinted above at the ambiguity of American conservatism, which seeks to conserve tradition—but to conserve a tradition that includes the radical Enlightenment philosophy of individual rights.
That ambiguity is contained in the dominant conservative jurisprudence of “originalism.” To classical liberals, the promise of originalism is that it calls upon us to refer back to the original philosophy behind the Founding and the Constitution. But Justice Alito’s draft opinion on Dobbs serves warning that conservative originalism is actually moving in a very different direction. Rather than grounding Constitutional interpretation in a philosophy of natural rights, it seeks to give constitutional authority to mere tradition. The conservatives are pulling a bait-and-switch, replacing originalism with a new jurisprudence of traditionalism.
What could possibly go wrong? Some people have pointed out that Alito’s draft cites the 17th-Century English jurist Sir Edward Coke as an authority on the traditional illegality of abortion. Yet Coke also supported another tradition: trials for witchcraft. As Lawrence O'Donnell puts it, “when you are justifying outlawing abortion because people conducting witch trials also believed that abortion should be against the law, you are morally lost.”
What he doesn’t say is that we are lost without a coherent and rationally grounded philosophy of individual rights.