I. ORIGINALISM VERSUS LIVING CONSTITUTIONALISM: A FALSE DICHOTOMY
In his famous critique of Roe v. Wade, (1) John Hart Ely remarked that if a principle that purportedly justifies a constitutional right "lacks connection with any value the Constitution marks as special, it is not a constitutional principle and the Court has no business imposing it." (2) Criticisms of Roe have generally proceeded precisely on this ground: the right to sexual privacy is not specifically mentioned in the Constitution, and there is no evidence that the framers and adopters of the 1787 Constitution or of any later amendments expected or intended the Constitution to protect a woman's right to abortion. It has become a commonly held assumption among Roe's critics that there is no constitutional basis for abortion rights or for a right of "privacy"; the right is completely made up out of whole cloth and therefore supporters of abortion rights have cut themselves adrift from the Constitution's text, history and structure. Even some defenders of abortion rights have bought into these criticisms; they view Roe v. Wade and privacy jurisprudence as a compelling reason to accept a version of living constitutionalism that grows and changes with the times.
The conventional wisdom about Roe, however, is wrong. The right to abortion (although not the precise reasoning in Roe itself) actually passes the test that Ely set out. It is in fact based on the constitutional text of the Fourteenth Amendment and the principles that underlie it. That is so even though the framers and adopters of the Fourteenth Amendment did not expect or intend that it would apply to abortion. In this essay I offer an argument for the right to abortion based on the original meaning of the constitutional text as opposed to its original expected application.
I argue, among other things, that laws criminalizing abortion violate the Fourteenth Amendment's principle of equal citizenship and its prohibition against class legislation. A long history of commentators has argued that abortion rights are secured by constitutional guarantees of sex equality premised on some version of an antisubordination principle. (3) One of the goals of this article is to show that the arguments of these commentators are not novel or fanciful but have deep roots in the original meaning of the Fourteenth Amendment. Thus, the arguments I present here, although specifically directed to the abortion controversy, help underscore the constitutional and originalist pedigree of much of the antisubordination literature.
A second, and larger purpose of my argument is to demonstrate why the debate between originalism and living constitutionalism rests on a false dichotomy. Originalists generally assume that if we do not apply the constitutional text in the way it was originally understood at the time of its adoption we are not following what the words mean and so will not be faithful to the Constitution as law. But they have tended to conflate two different ideas--the expected application of constitutional texts, which is not binding law, and the original meaning, which is. Indeed, many originalists who claim to be interested only in original meaning, like Justice Antonin Scalia, have encouraged this conflation of original meaning and original expected application in their practices of argument. (4) Living constitutionalists too have mostly accepted this conflation without question. Hence they have assumed that the constitutional text and the principles it was designed to enact cannot account for some of the most valuable aspects of our constitutional tradition. They object to being bound by the dead hand of the past. They fear that chaining ourselves to the original understanding will leave our Constitution insufficiently flexible and adaptable to meet the challenges of our nation's future. By accepting mistaken premises about interpretation-premises that they share with many originalists-living constitutionalists have unnecessarily left themselves open to the charge that they are not really serious about being faithful to the Constitution's text, history and structure.
The choice between original meaning and living constitutionalism, however, is a false choice. I reject the assumption that fidelity to the text means fidelity to original expected application. I maintain instead that constitutional interpretation requires fidelity to the original meaning of the Constitution and to the principles that underlie the text. The task of interpretation is to look to original meaning and underlying principle and decide how best to apply them in current circumstances. I call this the method of text and principle. This approach, elaborated in Part II, is faithful to the original meaning of the constitutional text, and the purposes of those who adopted it. It is also consistent with a basic law whose reach and application evolve over time, a basic law that leaves to each generation the task of how to make sense of the Constitution's words and principles. Although the constitutional text and principles do not change without subsequent amendment, their application and implementation can. That is the best way to understand the interpretive practices of our constitutional tradition and the work of the many political and social movements that have transformed our understandings of the Constitution's guarantees.
The right to abortion is a good test case for this approach to constitutional interpretation. Roe v. Wade is one of the canonical decisions of the present era, as Brown v. Board of Education (5) was for an earlier day, raising some of the most difficult and controversial constitutional questions. If the method of text and principle can give a reasonable account of the constitutional right to abortion, then it is likely to have considerable explanatory power in other contexts as well. In Parts III-VI, I offer the case for abortion rights based on the original meaning of the constitutional text and its underlying principles. Of course people can also use the same interpretive method to argue against the right to abortion. That is not a weakness of the approach--it shows how arguments from text and principle structure debate about constitutional rights over time between people who disagree in good faith about the best way to interpret the Constitution. Nevertheless, I shall try to show why the arguments for the abortion right are the most powerful and convincing.
Of course, demonstrating that the right to abortion flows from the Constitution's original meaning does not end the matter. It does not tell us, for example, how to reconcile this right with the state's legitimate interests in potential human life. The Constitution's original meaning does not require either Roe's trimester system (6) or the later framework announced in Planned Parenthood of Southeastern Pennsylvania v. Casey. (7) These are judicial constructions that attempt to vindicate the purposes behind the right and balance the relevant considerations. In Part VII of this essay, I offer a better way of approaching these questions, one that the Supreme Court did not adopt. The key, I shall argue, is to recognize that there are not one, but two different rights to abortion. The first right is a woman's right not to be forced by the state to bear children at risk to her life or health. The second right is a woman's right not to be forced by the state to become a mother and thus to take on the responsibilities of parenthood, which, in our society are far more burdensome for women than for men. As I shall explain, although the first right to abortion continues throughout pregnancy, the second right need not. It only requires that women have a reasonable time to decide whether or not to become mothers and a fair and realistic opportunity to make that choice. Hence the second right to abortion is consistent with the view that the state's interests grow progressively stronger as the pregnancy proceeds.
II. THE METHOD OF TEXT AND PRINCIPLE
A. ORIGINAL MEANING VERSUS ORIGINAL EXPECTED APPLICATION
Constitutional interpretation by judges requires fidelity to the Constitution as law. Fidelity to the Constitution as law means fidelity to the words of the text, understood in terms of their original meaning, and to the principles that underlie the text. It follows from these premises that constitutional interpretation is not limited to those applications specifically intended or expected by the framers and adopters of the constitutional text. Thus, for example, the Eighth Amendment's prohibitions on "cruel and unusual punishments" bans punishments that are cruel and unusual as judged by contemporary application of these concepts (and underlying principles), not by how people living in 1791 would have applied those concepts and principles. (8)
This marks the major difference between my focus on original meaning and the form of originalism that has been popularized by Justice Antonin Scalia and others. (9) Justice Scalia agrees that constitutional fidelity requires fidelity to the original meaning of the constitutional text, and the meanings that words had at the time they were adopted. (10) He also agrees that the original meaning of the text should be read in light of its underlying principles. But he insists that the concepts and principles underlying those words must be applied in the same way that they would have been applied when they were adopted. As he puts it, the principle underlying the Eighth Amendment "is not a moral principle of 'cruelty' that philosophers can play with in the future, but rather the existing society's assessment of what is cruel. It means not ... 'whatever may be considered cruel from one generation to the next,' but 'what we consider cruel today [i.e., in 1791]'; otherwise it would be no protection against the moral perceptions of a future, more brutal generation. It is, in other words, rooted in the moral perceptions of the time." (11) Scalia's version of "original meaning" is not original meaning in my sense, but actually a more limited interpretive principle, what I call original expected application. (12) Original expected application asks how people living at the time the text was adopted would have expected it would be applied using language in its ordinary sense (along with any legal terms of art). When people use the term "original understanding," and sometimes even "original meaning"--as Scalia does--they are actually talking about original expected application. Expectation-focused originalists can accommodate new phenomena and new technologies--like television or radio--by analogical extension with phenomena and technologies that existed at the time of adoption. But this does not mean, Scalia insists, that "the very acts that were perfectly constitutional in 1791 (political patronage in government contracting and employment, for example) may be unconstitutional today." (13)
B. MISTAKES AND ACHIEVEMENTS
Scalia realizes that his approach would allow many politically unacceptable results, including punishments that would shock the conscience of people today. So he often allows deviations from his interpretive principles, making him what he calls a "faint-hearted originalist." (14) For example, Scalia accepts the New Deal settlement that gave the federal government vast powers to regulate the economy that most people in 1787 would never have dreamed of and would probably have strongly rejected. (15)
Scalia's originalism must be "faint-hearted" precisely because he has chosen a unrealistic and impractical principle of interpretation, which he must repeatedly leaven with respect for stare decisis and other prudential considerations. The basic problem with looking to original expected application for guidance is that it is inconsistent with so much of our existing constitutional traditions. (16) Many federal laws securing the environment, protecting workers and consumers--even central aspects of Social Security--go beyond original expectations about federal power, not to mention independent federal agencies like the Federal Reserve Board and the Federal Communications Commission, and federal civil rights laws that protect women and the disabled from private discrimination. Even the federal government's power to make paper money legal tender probably violates the expectations of the founding generation. (17) The original expected application is also inconsistent with constitutional guarantees of sex equality for married women, (18) with constitutional protection of interracial marriage, (19) with the constitutional right to use contraceptives, (20) and with the modern scope of free speech rights under the First Amendment. (21)
The standard response to this difficulty is that courts should retain nonoriginalist precedents (i.e., those inconsistent with original expectation) if those precedents are well established, if they promote stability, and if people have justifiably come to rely on them. Interpretive mistakes, even though constitutionally illegitimate when first made, can become acceptable because we respect precedent. As Scalia explains, "[t]he whole function of the doctrine [of stare decisis] is to make us say that what is false under proper analysis must nonetheless be held true, all in the interests of stability." (22)
There are four major problems with this solution. First, it undercuts the claim that legitimacy comes from adhering to the original meaning of the text adopted by framers and that decisions inconsistent with the original expected application are illegitimate. It suggests that legitimacy can come from public acceptance of the Supreme Court's decisions, or from considerations of stability or economic cost.
Second, under this approach, not all of the incorrect precedents receive equal deference. Judges will inevitably pick and choose which decisions they will retain and which they will discard based on pragmatic judgments about when reliance is real, substantial, justified or otherwise appropriate. These characterizations are likely to conflate considerations of stability and potential economic expense with considerations of political acceptability--which decisions would be too embarrassing now to discard--and political preference--which decisions particularly rankle the jurist's sensibilities. Thus, one might argue that it is too late to deny Congress's power to pass the Civil Rights Act of 1964 under the Commerce Clause but express doubts about the Endangered Species Act. One might accept that states may not engage in sex discrimination but vigorously oppose the constitutional right to abortion or the unconstitutionality of anti-sodomy statutes. This play in the joints allows expectations-based originalism to track particular political agendas and allows judges to impose their political ideology on the law--the very thing that the methodology purports to avoid.
Third, allowing deviations from original expected application out of respect for precedent does not explain why these mistakes should not be read as narrowly as possible to avoid compounding the error, with the idea of gradually weakening and overturning them, so as to return to more legitimate decisionmaking. If the sex equality decisions of the 1970's were mistakes, courts should try to distinguish them in every subsequent case with the goal of eventually ridding us of the blunder of recognizing equal constitutional rights for women.
This point leads naturally to the final, and more basic problem: Our political tradition does not regard decisions that have secured equal rights for women, greater freedom of speech, federal power to protect the environment, and federal power to pass civil rights laws as mistakes that we must unhappily retain; it regards them as genuine achievements of American constitutionalism and sources of pride. These decisions are part of how and why we understand ourselves to be a nation that has grown freer and more democratic over time. No interpretive theory that regards equal constitutional rights for women as an unfortunate blunder that we are now simply stuck with because of respect for precedent can be adequate to our history as a people. It confuses achievements with mistakes, and it maintains them out of a grudging acceptance. Indeed, those who argue for limiting constitutional interpretation to the original expected application are in some ways fortunate that previous judges rejected their theory of interpretation; this allows them to accept as a starting point nonoriginalist precedents that would now be far too embarrassing for them to disavow.
By contrast, a focus on text and principle views most, if not all of these achievements as plausible constructions of constitutional principles that underlie the constitutional text and that must be fleshed out in doctrine. (23) As I shall describe later on, equal rights for women are fully consistent with the original meaning of the Fourteenth Amendment and its underlying principles of equal citizenship and opposition to caste and class legislation. (24) We need not regard decisions recognizing women's equal rights as mistakes: quite the contrary, they are our generation's attempt to make sense of and implement the Constitution's text and its underlying principles. These decisions--and others like them--do not sacrifice constitutional fidelity on the altar of precedent; they demonstrate how development of judicial doctrine over time can implement and maintain constitutional fidelity. It is rather those who would retreat from the achievements of our constitutional tradition or accept them only grudgingly who lack fidelity, because they lack faith in the ability and the authority of succeeding generations to accept the Constitution as their Constitution and to make constitutional text and constitutional principles their own.
A central difference between expectations-based originalism and the method I advocate is that my approach recognizes the great achievements of our country's constitutional tradition as achievements and as signs of progress rather than as deviations and mistakes that sacrifice legitimacy and legality for the sake of stability and respect for precedent. A second important difference concerns how these two theories understand post-enactment history and the work of social movements. Original expectation originalism holds that social movements and political mobilizations can change constitutional law through the amendment process of Article V. They can also pass new legislation, as long as that legislation does not violate the original expected application--as much federal post-New Deal legislation might. But no matter how significant social movements like the civil rights movement and the women's movement might have been in our nation's history, no matter how much they may have changed Americans' notion of what civil rights and civil liberties belong to them, they cannot legitimately alter the correct interpretation of the Constitution beyond the original expected application. For example, no matter how profoundly the second wave of American feminism altered our sense of what equality between men and women requires, it cannot change the original expected application of the Constitution, under which married women did not have equal civil rights. (25) The federal government can pass civil rights laws (assuming that these do not run afoul of the original expected application of the Commerce Power). But judges are not authorized to subject sex discrimination to constitutional scrutiny. At best we might maintain the mistaken decisions of the 1970s that found sex equality guarantees in the Constitution because it would be politically impossible to reject them and because women have come to rely on them.
The model of text and principle views the work of social movements and post-enactment history quite differently. The constitutional text does not change without Article V amendment. But each generation of Americans can seek to persuade each other about how the text and its underlying principles should apply to their circumstances, their problems, and their grievances. And because conditions are always changing, new problems are always arising, and new forms of social conflict and grievance are always being generated and discovered, the process of argument and persuasion about how to apply the Constitution's principles in new contexts is never-ending.
When people try to persuade each other about how the Constitution and its principles apply to their circumstances, they naturally identify with the generation that framed the constitutional text and they claim that they are being true to its principles. They can and do draw analogies between the problems, grievances and injustices the adopters feared or faced and the problems, grievances, and injustices of our own day. They also can and do draw on the experiences and interpretive glosses of previous generations--like the generation that produced the New Deal or the civil rights movement--and argue that they are also following in their footsteps.
Most successful political and social movements in America's history have claimed authority for change in just this way: either as a call to return to the enduring principles of the Constitution or as a call for fulfillment of those principles. Thus, the key tropes of constitutional interpretation by social movements and political parties are restoration on the one hand, and redemption on the other. Constitutional understandings change by arguing about what we already believe, what we are already committed to, what we have promised ourselves, what we must return to and what commitments remain to be fulfilled.
When political and social movements succeed in persuading other people in the country that their interpretation is the right one, they replace an older set of implementing constructions and doctrines with a new one. (26) These constructions and implementations may not be just or correct judged from the standpoint of later generations, and they can be challenged later on. But that is precisely the point. Each generation makes the Constitution their Constitution by calling upon its text and its principles and arguing about what they mean in their own time. Interpreting the Constitution's text and principles is how each generation connects back to the past and forward to the future.
Thus, it matters greatly, from the standpoint of text and principle, that there was a women's movement in the early 1960's and 1970's that convinced Americans that both married and single women were entitled to equal rights and that the best way to make sense of the Fourteenth Amendment's principle of equal citizenship was to apply it to women as well as men, despite the original expected application of the adopters. The equal protection decisions of the 1970's that gave heightened scrutiny to sex-based classifications are not "mistakes" that we must grudgingly live with. They are applications of text and principle that have become part of our constitutional tradition through the work of social movements and popular mobilizations. They might be good or bad applications; they might be incorrect or incomplete. That is for later generations to judge. But when people accept them, as Americans accept the notion of equality for women today, they are not simply doing so on the basis of reliance interests--i.e, that we gave women equal rights mistakenly in the 1970's, and now it's just too late to turn back. They are doing so in the belief that this is what the Constitution actually means, that this is the best, most faithful interpretation of constitutional text and principles.
Originalism based on original expected application tails because it cannot comprehend this feature of constitutional development except as a series of errors that it would now be too embarrassing to correct. Justice Scalia correctly and appropriately notes that his reliance on nonoriginalist precedents is not consistent with originalism, but rather a "pragmatic exception." (27) And that is precisely the problem with his view: The work of social movements in our country's history is not a "pragmatic exception" to fidelity to the Constitution. It is the lifeblood of fidelity to our Constitution--an ongoing project of vindicating text and principle in history.
In this way, the theory of text and principle explains--in a way that original expectation originalism cannot--why the Constitution is more than the dead hand of the past, but is a continuing project that each generation takes on. It is a great work that spans many lifetimes, a vibrant multi-generational undertaking, in which succeeding generations pledge faith in the constitutional project and exercise fidelity to the Constitution by making the Constitution their own.
None of this means that the original expected application is irrelevant or unimportant. It helps us understand the original meaning of the text and the general principles that animated the text. But it is important not as binding law but rather as an aid to interpretation, one among many others. It does not control how we should apply the Constitution's guarantees today, especially as our world becomes increasingly distant from the expectations and assumptions of the adopters' era. The concepts embodied by the words of constitutional text and the principles underlying the text, and not their original expected application, are the central concern of constitutional interpretation.
C. IMPLEMENTING TEXT AND PRINCIPLES
Although the original expected application is not binding, the constitutional text is. That is because we have a written Constitution that is also enforceable law. We treat the Constitution as law by viewing its text and the principles that underlie the text as legal rules and legal principles. To do this we must ask what the people who drafted the text were trying to achieve in choosing the words they chose, and, where their words presume underlying principles, what principles they sought to endorse.
We look to the original meaning of the words because if …