Constitutional Commitments to Ambitious Principles
The reasoning of the majority in Dobbs v. Jackson Women’s Health enshrines historic failures in the United States.
The decision of the United States Supreme Court in Dobbs v. Jackson Women’s Health override Roe vs. Wade is a tectonic shift in the constitutional landscape. The Court’s decision that the Constitution does not protect the right to decide whether to continue or terminate a pregnancy rejects a major reaffirmation of this right by Whole Woman’s Health vs. Hellerstedt released just six years ago and reverses the Supreme Court’s most comprehensive statement on the application of watch the decision to a precedent set in Family planning c. Casey. The consequences of this decision for the human rights and citizenship status of women, girls, and all others who may become pregnant are immediate and severe, and the public health impact for the entire United States is urgent.
The Dobbs The majority justified its radical change in doctrine with a method of constitutional interpretation that purports to rely on a strict account of historical practice to determine the extent of the substantive liberty protected by the Due Process Clause. In previous due process cases, the Court has asked whether rights that are not explicitly set forth in the text of the Constitution are “deeply rooted in the history and tradition of the Nation” and “essential to a regime of freedom ordered”. Dobbs interprets this doctrine as requiring a demonstration that the effective protection of the right to abortion was in fact consistently practiced in all legislative and common law traditions of the United States.
Finding that this was not the case, the Dobbs The Court said, “The clear answer is that the Fourteenth Amendment does not protect the right to abortion.” The decision seriously disrupts the constitutional doctrine of human rights under the Due Process Clause and undoes a half-century of precedent around which millions of Americans have structured their personal, professional and family lives.
The constitutional methodology of the majority in Dobbs demands scrutiny on many fronts: her contempt for the harm forced pregnancy laws will inflict on half the American population; his rejection of women’s dependency interests in deer as immaterial and inferior to the more “concrete” interests that arise in “matters involving property rights and contractual rights”; and its erasure of the millions of black Americans who suffered the most brutal forms of forced pregnancy under the system of chattel slavery that the Thirteenth and Fourteenth Amendments were intended to eradicate.
My objective in this commentary is the analytical use of the Dobbs majority made his account of the historical record. Leaving aside the many problems with its description of the status of abortion in the American legal tradition, the majority posits a specific role for this legal archive. For the right to control one’s own reproductive life to be “deeply rooted in the nation’s history and tradition,” the Court reasoned, there must be a strong history of states recognizing an affirmative right to abortion or less legally authorizing the practice. Given that the legal records instead show a frequent practice of denying women autonomy over their bodies, the Court finds that the right to obtain an abortion finds no protection under the Due Process Clause. The original meaning of the Constitution, affirms the majority, is found in the consensus of social praxis at the time of its drafting. This practice should be seen as a limitation on the scope and nature of the rights that the Constitution will protect. It is this truncated account of the history and practice of constitutional interpretation that I wish to challenge.
When we write and ratify a Constitution, or write and ratify amendments, what do we do? Are we crystallizing a near-universal consensus about the real practices taking place on the ground – about how people actually go about their lives and make day-to-day public policy decisions? When we explicitly protect freedom of expression and freedom of religion, or when we prohibit unreasonable search and seizure or cruel and unusual punishment, is it because we as a society are already putting into practice a commitment strong and reliable to protect outrageous speeches and infidel religions or to repudiate unreasonable searches and cruel punishments?
Of course not. A constitution does more than crystallize an existing set of daily practices that are so well established that they are not subject to serious questioning. A constitution makes a long-term commitment to important principles. The reason a society needs such a charter is precisely because humans are flawed and hypocritical creatures who routinely fail in their day-to-day commitments even as they proclaim and reaffirm the importance of those commitments.
When Majority Dobbs invokes her vision board of historical precedents to show that governments in fact failed to respect women’s rights and autonomy in previous centuries of American and European legal history – a narrative that, surprisingly, doesn’t even mention the systematic rape, forced pregnancy and exploitation of black women’s reproductive lives during slavery – they are asking a nonsensical question. This record of failure no more precludes claims under the Constitution’s protection of liberty than the long history of punishing dissenting speech or heretical beliefs hampers the First Amendment.
Societies instantiate commitments to principles in written constitutions because they know they regularly fail to adhere to those principles. And as the United States Supreme Court has repeatedly said in less vindictive moments, American constitutional tradition recognizes the need to interpret and revisit its commitments to principles over time as the evolution of the nation’s collective understanding of humanity and its growth as a civilized society allow it. see these commitments in new terms.
Professor Michael Dorf, a constitutional scholar at Cornell Law School, coined the phrase “the aspirational constitution” to describe a mode of constitutional creation and interpretation that seeks to elevate a set of deep commitments over time. in response to a company’s demonstrated ability to violate these covenants at the time. Professor Dorf distinguishes this ambitious mode of constitution-making from what he calls an “anti-backsliding principle” where a widespread consensus in social practice emerges the moment a constitution is drafted and the people want to guard against any future entrenchment on this consensus. .
It is far too easy for a court to lock itself exclusively into the anti-backtracking mode of interpretation and disregard the constitutional aspiration, claiming that this constrains the judiciary to objectively verifiable and politically legitimate decisions. We must actively fight against this limiting drive.
A constitution sometimes acts ambitiously to bind current and future generations to difficult commitments when a long history of failure demonstrates the need for such restrictions. When self-identified originalists point to the trail of oppressive policies in the 19th, 18th, or seemingly 13th centuries that failed to uphold important principles in the day-to-day affairs of governance, then treat those failures as absolute limits to engagement with the principle that the undertakings in drafting and ratifying a written constitution, they form a powerless record of the aspirations which attach to a founding charter.
This short and medium description of the role of historical archives in constitutional interpretation in Dobbs is one of the Supreme Court’s greatest failures.