The New Textualism, Progressive Constitutionalism, and Abortion Rights: A Reply to Jeffrey Rosen

Abstract

In this Essay, I offer a few thoughts in response to Jeffrey Rosen's contribution to this symposium on Jack Balkin's "Living Originalism". I will first focus on what he writes about the "new textualism." I will then reply to what he intimates about the continuing validity of Roe v. Wade. In short, I will argue that Rosen offers progressives little reason to accept the new textualism or to reject Roe in the name of legal fidelity.

If the abortion right is ultra vires because a lack of decisive warrant in text, structure, and history trumps mediating equality principles and legal doctrine, then so is much else that progressives view as constitutional law. If the new textualism lacks the interpretive resources to justify the abortion right, then neither can it justify other core progressive constitutional commitments. Indeed, abandoning Roe and Casey would be no mere concession that legal progressives would make in the name of fidelity to law. Abandoning the abortion right would entail a huge sacrifice of the very substantive understanding of equality that binds together most progressive understandings of equal citizenship in the areas of discrimination based on race, national origin, ethnicity, sex, sexual orientation, and disability.

Keywords: abortion rights, textualism, Supreme Court, Roe v. Wade, Equal Protection Clause, discrimination