Memory Games: Dobbs’s Originalism As Anti-Democratic Living Constitutionalism—and Some Pathways for Resistance
78 Pages Posted: 9 Aug 2022 Last revised: 4 Apr 2023
Date Written: August 9, 2022
This Article examines originalism’s role in overruling Roe in Dobbs v. Jackson Women’s Health Organization. Through this case study the Article explores competing understandings of originalism. It shows that originalism is not simply a value-neutral method of interpreting the Constitution. Originalism is also a political practice whose long-term goal has been the overturning of Roe. As the conservative legal movement has developed originalism, judicial appointments matter critically to originalism’s authority, as do originalism’s appeals to constitutional memory to legitimate the exercise of public power. Examining these different dimensions of originalism’s authority, the Article shows that the conservative legal movement has practiced originalism as form of living constitutionalism that makes our constitutional order less democratic in several important ways.
To demonstrate how this is so, the Article returns to originalism’s roots in the Reagan years and examines originalism’s origins in a backlash to the decisions of the Warren and Burger Courts. In 1980, for the first time—and continuously ever since—the Republican Party’s platform promised that “[w]e will work for the appointment of judges at all levels of the judiciary who respect traditional family values and the sanctity of innocent human life.” I examine the family-values politics from which the quest to overturn Roe emerged, the judicial screening practices developed to pursue it, and the talk of law and politics employed to justify it.
The Article reads Dobbs through a double lens. I first consider how originalists have evaluated the originalism of the opinion (some term Dobbs “living constitutionalist”), and then go on to show how Dobbs depends on the appointments politics and constitutional memory claims I have identified as part of the political practice of originalism. Dobbs’s living constitutionalism serves contemporary movement goals: the history-and-traditions standard that Dobbs employs to overturn Roe threatens many of the same lines of cases targeted for reversal by the architects of originalism in the Reagan administration.
The deepest problem with Dobbs, however, is that its originalism is living constitutionalism that makes our constitutional order less democratic. Dobbs restricts and threatens rights that enable equal participation of members of historically marginalized groups; Dobbs locates constitutional authority in imagined communities of the past, entrenching norms, traditions, and modes of life associated with old status hierarchies; and Dobbs presents its contested value-judgments as expert claims of law and historical fact to which the public owes deference. A concluding Part focuses on constitutional memory as a terrain of constitutional conflict and begins to ask questions about how claims on our constitutional past might be democratized, both inside and outside of originalism, in the aspiration to take back the Constitution from the Court.
Keywords: originalism, abortion, Dobbs v. Jackson Women's Health, Glucksberg, Obergefell, history and traditions, constitutional memory, living constitution, original public meaning
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