The Volokh Conspiracy
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Dobbs and the Originalists
Why originalist criticisms of Dobbs often misfire, and why criticisms *of* Dobbs's originalism often misfire too.
Was Dobbs an originalist opinion? Did it abandon originalism for "history and tradition"? Or did the Court's history show originalism itself to be fatally flawed?
I'd say "yes," "no," and "of course not." To that end, I've got a new paper, forthcoming in the Harvard Journal of Law & Public Policy, defending Dobbs on originalist grounds. It's short—18 pages!—and tries to get the point across quickly. From the abstract:
Though often hailed as an originalist triumph, Dobbs v. Jackson Women's Health Organization has also been condemned as an originalist betrayal. To some, it abandoned originalism's principles in favor of a Glucksbergesque history-and-tradition test, or even a "living traditionalism"; to others, its use of originalism was itself the betrayal, yoking modern law to an oppressive past.
This essay argues that Dobbs is indeed an originalist opinion: if not distinctively originalist, then originalism-compliant, the sort of opinion an originalist judge could and should have written. Dobbs shows the importance of looking to our original law—to all of it, including lawful doctrines of procedure and practice, and not just to wooden caricatures of original public meaning. As the case was framed, the Court's focus on history and tradition was the correct approach; on the evidence presented, it reached the correct originalist result. Understanding the Fourteenth Amendment as securing old rights, rather than as letting judges craft new ones, leaves more rather than fewer choices for today's voters. In any case, it may be the law we've made, both in the 1860s and today.
And from the intro:
Dobbs v. Jackson Women's Health Organization is widely regarded as a "triumph for originalism." For years, many people had assumed that opposing the Supreme Court's decisions in Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey was what it meant to be an originalist; to see Roe and Casey overturned would naturally be an originalist victory.
But almost as soon as Dobbs was handed down, critics began to describe it as an originalist betrayal. Some saw it as a betrayal of originalism, arguing that the Court hadn't been originalist enough. What was it doing, citing substantive due process cases like Washington v. Glucksberg? Why wasn't it throwing Griswold v. Connecticut, Eisenstadt v. Baird, Lawrence v. Texas, or Obergefell v. Hodges under the bus? Was this "a form of living constitutionalism," or a "living traditionalism," or something more exotic still? Others, meanwhile, portrayed Dobbs's originalism itself as the betrayal—decrying the decision as a flawed effort both in process and in substance, one that engaged in bad history to reach bad results.
Both criticisms go awry. Dobbs was indeed an originalist opinion as a matter of form; on the arguments presented, it was also correct as a matter of originalist substance. True, the Dobbs Court cited and applied its modern precedents on substantive due process, and it didn't cite Madison or John Bingham every other page. In that sense it wasn't a distinctively originalist opinion, the kind that only a faithful originalist could write. But it was an originalism-compatible opinion, the kind a faithful originalist could write. Indeed, it appears to have been an originalism-compliant opinion, the kind a faithful originalist should write, reaching the right originalist result for what were essentially the right originalist reasons.
To understand why, though, we have to pay attention to some recent developments in originalist theory. In particular, we have to distinguish specific questions of original meaning from more general—and, here, more relevant—questions of original law: that is, the law of the United States as it stood at the Founding, and as it's been lawfully changed to the present day. That law includes enacted law, such as the Constitution, statutes, and treaties, but it also includes unwritten law, such as unabrogated rules of the common law, equity, or admiralty. In particular, it includes common-law doctrines of party presentation and of stare decisis, which might have obliged an originalist Court to rule just as it did. If both parties in Dobbs accepted the authority of Washington v. Glucksberg, it can't be too surprising that the Court might have gone ahead and Glucksberged.
Once we understand the role of unwritten law, we can also see that something not too far from Dobbs's history-and-tradition test may in fact be what the Constitution commands. Many originalists reject doctrines of substantive due process but understand the Fourteenth Amendment's substantive rights guarantees to relate to the Privileges or Immunities Clause instead. This Clause likely protects a variety of preexisting rights defined by general law—rights that we today might call common-law rights, but not in the sense of being up to state or federal judges to invent. The Clause obliges us to look to history for these rights, not because the past must always be preserved inviolate, but because certain past practices are evidence of past legal rules, and those rules are all the Amendment foists on us today. If the resulting doctrine is narrower than some might like, this just means the Amendment's yoke is easy and its burden light; the remaining decisions are up to us, and to our "elected representatives."
As they say, read the whole thing!
