Reva Siegel, Yale Law School, has posted How Dobbs Weaponizes Brown: The Roots of Dobbs’s History-and-Tradition Method in the Defense of Segregation, which is forthcoming in the Yale Law Journal:
In Dobbs v. Jackson Women’s Health Organization, the Roberts Court claimed authority for its decision to overturn Roe v. Wade by comparing itself to the Warren Court in Brown v. Board of Education overturning Plessy v. Ferguson. This Essay challenges the claim that Dobbs is like Brown by recovering history the Court omitted in Dobbs—omissions that enabled the Court to weaponize Brown as authority for overturning Roe.--Dan Ernst
Dobbs interpreted the Constitution’s liberty guarantee by counting state laws that banned abortion at the time of the Fourteenth Amendment’s ratification. In doing so, Dobbs employed a method of interpreting the Amendment popularized by those who opposed Brown. They defended Plessy as properly interpreting the Constitution’s equality guarantee by counting states whose laws segregated education in 1868. Brown repudiated this tradition-entrenching method of interpreting the Amendment and called upon the nation to align its practices with its constitutional ideals.
Examining the history Dobbs omitted helps us think critically about the justifications Dobbs offered for its method of interpreting the Fourteenth Amendment. Dobbs argued that its use of state counting in 1868 to enforce the Fourteenth Amendment’s liberty guarantee provided an objective standard that prevented interpreters from reasoning from their values and so protected democracy in the states. The history this Essay examines refutes each of these claims. Counting states that segregated education (or banned abortion) in 1868 was not a neutral or objective measure of the Constitution’s meaning; it expressed the interpreters’ values by perpetuating exclusions of the past into the future. The democracy it supported was a thin majoritarianism, democracy without rights that would protect the participation of those historically excluded from the democratic process. Race and gender conflicts over the abortion bans Dobbs authorized in Mississippi show how the liberty and democracy Dobbs protects perpetuate and entrench inequalities of 1868.
By reconstructing the lineage of arguments that state laws in 1868 are proxies for the original understanding, we can see how early forms of originalism and Dobbs’s history-and-tradition method grew out of resistance to Brown and backlash to the Warren and Burger Courts. Debate over Brown posed core questions about fidelity to the Constitution. We renew and sustain that debate on Brown’s seventieth anniversary as we ask how claims on the constitutional memory of Brown relate to its constitutional history.
