In case you missed the panel at the recent ASLH, “The History of ‘History and Tradition’ in Dobbs v Jackson Women’s Health Organization,” here is a related symposium in the Yale Law Journal Forum including three of the four panelists, Doing History After Dobbs: Applications, Implications, and Critiques of Dobbs's Historical Methodology.
Lessons from Lawrence: How “History” Gave Us Dobbs—And How History Can Help Overrule It
Aaron Tang
Dobbs v. Jackson Women’s Health Organization is not the first time the Supreme Court has relied on dubious history to deny a constitutional right of profound importance. When the Court rejected what it described as the right of “homosexuals to engage in acts of consensual sodomy” in Bowers v. Hardwick, it did so based on disputed historical claims about criminal sodomy laws in early America. Indeed, when the Court later overruled Bowers in Lawrence v. Texas, it openly confessed that Bowers’s “historical premises are not without doubt and, at the very least, are overstated.”
This Essay explores three important lessons that reproductive-justice advocates can learn from Lawrence’s use of history to discredit Bowers. First, Lawrence shows that Dobbs is vulnerable to overruling because it, like Bowers, rests on faulty historical premises, including (but hardly limited to) Dobbs’s self-proclaimed “most important historical fact” that twenty-eight out of thirty-seven states banned abortion throughout pregnancy as of the Fourteenth Amendment’s enactment. Second, Lawrence suggests that these historical errors should undermine any claim Dobbs might make to stare decisis treatment. Finally, Lawrence reveals history’s limited utility in modern constitutional disputes. The problem with Dobbs’s dubious history, Lawrence teaches, is not that it represents the misapplication of a tractable test. The problem is that the history-and-tradition test Dobbs purports to apply is often deeply underdeterminate.
The History of History and Tradition: The Roots of Dobbs's Method (and Originalism) in the Defense of Segregation
Reva B. Siegel
In Dobbs v. Jackson Women’s Health Organization, the Roberts Court claimed authority 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—history that ties Dobbs’s history-and-tradition method to the defense of segregation.
Dobbs interpreted the Constitution’s liberty guarantee by counting state laws criminalizing abortion at the time of the Fourteenth Amendment’s ratification. In so doing, Dobbs was employing modes of reasoning that were 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—the majority of which were states of the former Confederacy that were resisting Reconstruction. Brown repudiated this backward-facing method of interpreting the Amendment and called upon the nation to change its practices to conform to its constitutional ideals. In so doing, Brown recognized that application of the Constitution’s guarantees evolves in history—the approach in the Court’s substantive due process cases that Dobbs repudiated when it counted states that criminalized abortion in 1868 to justify reversing Roe.
This Essay traces the rise and spread of an interpretive method—counting state laws in 1868—that finds the Constitution’s meaning fixed in the deep past, tied to the expectations, intentions, and practices of the Constitution’s ratifiers. It shows how this method—and forms of originalism and traditionalism that limit the Fourteenth Amendment’s meaning to its ratifiers’ expectations, intentions, and practices—arose in opposition to methods of interpreting the Amendment that recognize that application of its guarantees evolves in history. These debates spread from conflict over segregation to substantive due process cases including Roe, Bowers, Casey, Glucksberg, Lawrence, and Obergefell, and they continue today, often as arguments about the “levels of generality” at which judges should interpret the Constitution’s requirements. In tracing the argument that state laws in 1868 are proxies for the expectations and intent of the Fourteenth Amendment’s ratifiers, this Essay shows how early forms of originalism and Dobbs’s history-and-tradition method emerged out of resistance to Brown and backlash to decisions of the Warren and Burger Courts. This history connects interpretive debates of the 1950s, the 1980s, and the 1990s to controversies about interpretive method that arise in the present day—as Americans argue about Dobbs’s legitimacy and ask how, if at all, Dobbs should guide federal and state courts in interpreting liberty and equality guarantees.
Examining interpretive methods in the political conflicts in which they grew 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 impersonal 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, demonstrating how Dobbs’s method conceals dynamic forms of interpretation and enforces disempowering forms of democracy.
Counting states that segregated education (or banned abortion) in 1868 was not a neutral measure of the Constitution’s meaning, but instead perpetuated political inequalities of the past into the future. The democracy Dobbs supported was a thin majoritarianism, democracy without rights to protect the participation of those historically excluded from the democratic process. Race and gender conflicts over the abortion bans Dobbs authorized in Mississippi illustrate how the liberty and democracy Dobbs protects entrench political inequalities of 1868. Examining justifications for interpretive methods in political context makes vivid how in debates over abortion and gay rights, as in the debate over segregation, a backward-looking standard that appeared to fix the Constitution’s meaning in the past in fact vindicated the interpreters’ values and functioned as a veiled form of conservative living constitutionalism.
This Essay refutes the claim that Dobbs is like Brown on terms that contribute to contemporary debates in constitutional law and theory. Critically examining claims on the constitutional memory of Brown is a practice of fidelity to Brown as we commemorate its seventieth anniversary.
The History of Neutrality: Dobbs and the Social-Movement Politics of History and Tradition
Mary Ziegler
By excavating the history around the history-and-tradition test used in Dobbs v. Jackson Women’s Health Organization and the alternative it pushes to the side, this Essay reconsiders the meaning—and plausibility—of neutrality claims turning on the Dobbs Court’s use of history and tradition.
--Dan Ernst
