Fifteen Eighty Four

Academic perspectives from Cambridge University Press


History, Rights, and Constitutional Law

H. Jefferson Powell

Photo by Joshua Sukoff on Unsplash

The Supreme Court in Dobbs v. Jackson Women’s Health Organization overruled Roe v. Wade, the 1973 case recognizing a right to an abortion, and the 1992 Casey decision that reaffirmed Roe. From any human perspective, Dobbs was momentous, but the meaning of a major constitutional law decision reaches beyond its immediate subject. Dobbs thus demands analysis not only for its moral and political implications but also for its technical aspects and what it means for future decisions. The Court informed us that Roe was “egregiously wrong” – but why? At first glance, the Court’s answer rests squarely on history, but read alongside New York State Rifle & Pistol Association v. Bruen, which struck down a gun licensing statute the day before, Dobbs’s ostensible clarity turns uncertain.

Roe and Casey identified the right to terminate a pregnancy as an aspect of the “liberty” the Fourteenth Amendment protects against deprivation “without due process of law.”Dobbs accepted Roe’s assumption that Fourteenth Amendment “liberty” encompasses some rights that the constitutional text does not specify, but only, Dobbs insisted at length, when the right in question is “deeply rooted in our history and tradition” and essential to the American idea of “ordered liberty.” Historical fact determines the outer limits of constitutional rights grounded in the Due Process Clause, Dobbs seems to say, and measured by that standard, the majority thought Roe was plainly wrong. No one in 1868 (when the Amendment was adopted) thought it protected a right to an abortion, and in 1973 there was no long-standing tradition of protecting it.

In overruling Roe on this basis, Dobbs rejected the argument that the right to an abortion is analogous to other liberties the Court has protected on due process grounds, including the right to use contraceptives (Griswold), the right to private sexual intimacy (Lawrence), and the right of same-sex couples to marry (Obergefell). Dobbs repeatedly denied that it undermines those decisions, observing that what “sharply distinguishes the abortion right from the rights recognized” in other cases is that abortion destroys “the life of an unborn human being.” But by Dobbs’s historical reasoning, this won’t do. If Dobbs actually rests on the stringent historical test it purports to apply, Obergefell, Griswold, and Lawrence are as flawed as Roe and for the same reason: they lack a “deeply rooted” history of protection. That Roe can be criticized on other grounds as well shouldn’t matter.

Now consider Bruen, which held that a state firearms statute violated the Second Amendment right to bear arms that the Court views as an aspect of Fourteenth Amendment “liberty.” When the right to bear arms applies, Bruen announced, regulation is constitutional only if it falls within “the Nation’s historical tradition of firearm regulation.” If this were all that Bruen said, it would join Dobbs in demonstrating that a majority of the justices are prepared to rely on narrowly factual historical claims in determining the scope of individual rights. The reasoning would be the same as that in Dobbs: American legal tradition sets the boundaries of “liberty.” The only difference lies in what is in dispute – in Bruen, the existence of a permissible limitation on the right established by “the Second Amendment’s plain text,” and in Dobbs, the existence of a Fourteenth Amendment right with no text beyond the word “liberty.” In both instances, historical fact separates protected from unprotected freedoms.

Bruen, however, said more. Recognizing the existence of “modern [firearms] regulations that were unimaginable at the founding,” the Court instructed that the “historical inquiry” “will often involve reasoning by analogy,” which “requires only that the government identify a well-established and representative historical analogue, not a historical twin.” The constitutional conclusion starts with history but ultimately involves the exercise of normative judgment – is the constitutional claim being evaluated “analogous enough” to a historical tradition to demand similar treatment?

If constitutional law is to make sense, we would expect the “historical inquiry” required by Dobbs to parallel that ordained by Bruen. But Bruen undermines Dobbs’s assertion that history proves its judgment correct. By Bruen’s logic, what could distinguish Dobbs from, say, Obergefell is not (on its own) a historical fact about what Americans thought in 1868, but ultimately what the Dobbs majority thinks persuasive in 2022. In Obergefell, the Court was persuaded that same-sex marriage is analogous for constitutional purposes to marriage in our legal tradition, while in Dobbs, the Court did not think the abortion right is “analogous enough” to other liberties the Court now recognizes. That is a normative, legal judgment, and one that Dobbs did not explain. Perhaps the majority was swayed by the consideration that abortion destroys an unborn life, but nowhere did it explain why that fact matters constitutionally, especially if, as Dobbs asserted, the Court’s “opinion is not based on any view about if and when” “the rights of personhood begin.” Historical fact alone cannot justify Dobbs, and the Court’s opinion leaves this history-making case’s true ground of decision quite unclear.

The Practice of American Constitutional Law by H. Jefferson Powell

About The Author

H. Jefferson Powell

H. Jefferson Powell is a professor of law at Duke University. He is the former Principal Deputy Solicitor General and a former deputy assistant attorney general in the US Departmen...

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