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05/25/2022

James Heaney on Originalism and the Dobbs Draft Opinion
Michael Ramsey

At Law & Liberty, James Heaney: Kindling a New Originalist Fire.  From the core of the argument: 

The leaked draft majority opinion, by the “practical originalist” Justice Samuel Alito, would indeed be a significant victory for pro-lifers, should it become official. Yet the draft not only does not depend on originalist textualism; it bears almost no evidence of being influenced by originalism at all!

...

Roe v. Wade and its sequel, Planned Parenthood v. Casey, located a constitutional right to abortion in the “due process” clause of the Fourteenth Amendment (or, alternatively, in the Ninth Amendment). An originalist  Dobbs  decision would begin with a fair but thorough evaluation of the original public meaning of the due process clause, before proceeding to the textual basis for “substantive due process” rights, their application (if any) to abortion, and the meaning and justiciability of the Ninth Amendment. This opinion would consider historical and semantic evidence regarding the Amendments’ objective meaning, according to the understanding of a reasonable person at the time of their adoption; the Amendments’ expected applications, insofar as they revealed the objective principles the Amendments embody; and finally, the application of that objective meaning to the question of abortion, using tools of constitutional interpretation or construction as appropriate. The result of this inquiry would likely foreclose not only a constitutional right to abortion, but, if Justice Thomas’s unflinching originalist case law is any indication, the entire line of substantive due process cases as well.

Fortunately for the entire line of substantive due process cases, Alito’s draft majority does nothing of the sort. Alito accepts without question the existence of substantive due process rights and their grounding in the Fourteenth Amendment. He likewise accepts the entire body of precedents that guide “discovery” of substantive due process rights. The only precedents Alito dares to doubt are Roe and Casey themselves. Those are the cases directly challenged by Mississippi in its arguments to the Court, so the opinion limits itself to those cases. The opinion does favorably cite cases from the textualist “anti-canon,” such as Griswold (albeit indirectly), but the reader will ctrl-F in vain for a single reference to “original public meaning” in Alito’s draft majority.

Having accepted substantive due process rights and the entire body of case law built on them, Justice Alito turns to the question of whether Roe (and, by extension, Casey) were correctly decided. In short, rather than analyzing them on sturdy originalist terrain, Alito chooses to confront Roe and Casey on their home turf. He grants them every advantage, every precedent they ask for, every interpretive standard they rely on—no matter how far afield it may take him from the original public meaning of the Constitution. After construing everything in their favor, Alito then asks whether  Roe or Casey demonstrate a constitutional right to abortion, according to their own putative standards.

So will Justice Thomas have a concurrence taking the originalist approach? (I suspect so).