The Genetic Fallacy and a Living Constitution

By Barzun, Charles L. | Constitutional Commentary, Fall 2019 | Go to article overview

The Genetic Fallacy and a Living Constitution


Barzun, Charles L., Constitutional Commentary


Should the historical origins of some principle or practice affect how we think about it today? Under one standard view, the answer is "no"; to think otherwise is to commit a fallacy--the genetic fallacy. (1) But in legal argument, origins often seem to matter a great deal. This Essay takes up the question of whether, or under what conditions, it is right for them to do so.

To motivate the inquiry, consider a recent example of such an argument. This past spring the Supreme Court, in a per curiam opinion, declined to consider the issue of whether the Constitution barred Indiana from prohibiting "sex-, race-, or disability-selective abortions by abortion providers." (2) Such denials of writs of certiorari tend not to receive much attention, but Justice Clarence Thomas wrote a lengthy concurrence that made news. Thomas suggested that Indiana might have a "compelling interest" in "preventing abortion from becoming a tool of modern-day eugenics." (3) As evidence, he pointed to the way in which the history of abortion was at times wrapped up with the eugenics movement. For instance, Margaret Sanger, the founder of respondent's parent organization, Planned Parenthood, advocated the use of birth control in order to reduce "ever increasing, unceasingly spawning class of human beings who never should have been born at all," (4) and a later president of Planned Parenthood, Alan Guttmacher, specifically "endorsed the use of abortion for eugenic reasons." (5) Justice Thomas went on to show the way in which the eugenics movement was embraced by the Nazis and more generally reflected an ideology of white supremacy. (6)

The response to Thomas's opinion was swift and fierce. Some insisted that he got the history wrong, (7) others observed that Sanger herself had opposed abortion, (8) and still others argued that linking the Indiana law to eugenics required too capacious a definition of what "eugenics" includes. (9) But for my purposes the relevant criticism leveled was an objection to the form of Thomas's argument. It amounted, according to both an historian and a legal scholar, to a charge of "guilt by association." (10) Justice Thomas was effectively arguing, Professor Michael Dorf concluded, "that because some people once favored a legal right to abortion for a bad reason, it should be banned today." (11)

Put differently, these scholars accused Thomas of committing the genetic fallacy. (12) That term (ironically, given the context here) has nothing directly to do with genetics in the biological sense. Instead, it describes the process of using facts about the origins of some belief or practice to support an inference (positive or negative) about the truth of the belief or of the claims that the practice embodies. So, the reasoning goes, the fact that some people supported abortion for ("bad") eugenicist reasons is irrelevant to whether today ("good") non-eugenicist reasons exist to support the availability of abortion.

What is striking about this critique is that such "genetic" arguments have a long tradition in the disciplines of both history and law. Take history first. Anytime an historian offers an account of the history of some practice or rule as an effort to "debunk" its current status or prominence, they are committing the "genetic fallacy." Charles Beard famously argued that the Framers were motivated primarily by their class and financial interests. (13) To the extent that his work was understood to challenge the sanctity with which the constitutional structure was regarded in his day, such reasoning depends on the genetic fallacy. (14) Similarly, a generation of critical legal historians sought to undermine current legal regimes by arguing that the doctrines that comprise them originally developed to serve narrow, class interests. (15) They, too, commit the alleged fallacy. (16)

Such arguments are probably even more common in broader political and cultural debates in which history is deployed in order to attack current policies or programs. …

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