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12/08/2021

Originalism and a Constitutional Prohibition on Abortion
Michael Ramsey

Among the harshest criticisms of originalism is that it is a mere cover for judges enacting the policy preferences of the conservative legal movement.  For example, Paul Waldman makes this claim in the Washington Post, in the context of Dobbs, the pending abortion case.  He concludes:

It was all a lie, a scam, a con: the assurances that they [the Supreme Court nominees] were blank slates committed to “originalism” and “textualism,” that they wouldn’t “legislate from the bench,” that they have no agenda but merely a “judicial philosophy.”

Somehow that philosophy nearly always produces results conservatives want ...

But the abortion case actually shows the opposite of Waldman's claim.  The conservative legal movement doesn't want just to overturn Roe; it (or at least part that cares most about the issue) wants to outlaw abortion.  In Dobbs, though, at most the Court may merely withdraw the constitutional bar on abortion restrictions so that the question can be resolved by the political branches. 

Why not do more?  Why wouldn't the Court rule that states that permit abortion violate the Constitution?  If the conservative Court really believes it can "legislate from the bench" to "produce[ ] results conservatives want," isn't that the outcome we would expect?

Surely the Constitution can accommodate that conclusion.  As many on the left have argued, the Constitution's due process and equal protection clauses are open-ended and can be read to appeal to broad principles to be applied in light of contemporary morality and policy.  If, as anti-abortion conservatives believe, human life begins at conception or some point near to it, an aggressive living-constitutionalist conservative could find in those clauses a protection for unborn life.  Far less plausible claims have been made and accepted by courts on behalf of the policies of the left.

The conservative originalist Justices on the Court are not going to rule this way, and Justice Scalia -- as firmly anti-abortion as anyone -- never considered it.  The reason is originalism.  Though a few scholars have argued to the contrary, the overwhelming mainstream originalist position, among both scholars and judges, is that the Constitution's original meaning does not protect unborn life.  (See here from Jonathan Adler: Why the 14th Amendment Does Not Prohibit Abortion.)  It is the Justices' commitment to originalism and textualism that prevents them from legislating from the bench to achieve conservative policy goals in the abortion debate.  (And originalism is criticized by some conservatives on this ground.)

Left-leaning commentators like Paul Waldman entirely miss this point because they don't understand where conservative living constitutionalism, unconstrained by originalism, might go.  Originalism isn't a cover for conservative judicial legislation; it's a check on conservative judicial legislation.  

UPDATE:  Proving the point, at the anti-originalist blog Ius & Iustitium: The End of Originalism (arguing that originalism is an inadequate judicial philosophy because it stands in the way of a moral reading of the Constitution that would, among other things, find abortion unconstitutional).

(Via Stephen Sachs at Volokh Conspiracy, who has a lengthy response: Originalism and "Might Makes Right": The moral case for positive law.)