Abortion and Original Meaning
Balkin, Jack M., Constitutional Commentary
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. …