Dobbs and the Originalists

18 Pages Posted: 17 May 2024

Date Written: May 15, 2024

Abstract

Though often hailed as an originalist triumph, Dobbs v. Jackson Women’s Health Organization has also been condemned as an originalist betrayal. To some, it abandoned originalism’s principles in favor of a Glucksbergesque history-and-tradition test, or even a “living traditionalism”; to others, its use of originalism was itself the betrayal, yoking modern law to an oppressive past.

This essay argues that Dobbs is indeed an originalist opinion: if not distinctively originalist, then originalism-compliant, the sort of opinion an originalist judge could and should have written. Dobbs shows the importance of looking to our original law—to all of it, including lawful doctrines of procedure and practice, and not just to wooden caricatures of original public meaning. As the case was framed, the Court’s focus on history and tradition was the correct approach; on the evidence presented, it reached the correct originalist result. Understanding the Fourteenth Amendment as securing old rights, rather than as letting judges craft new ones, leaves more rather than fewer choices for today’s voters. In any case, it may be the law we’ve made, both in the 1860s and today.

Keywords: Dobbs, Supreme Court, abortion, originalism, original law, general law, Fourteenth Amendment, privileges and immunities

JEL Classification: K1, K10, K3, K30, K36, K4, K40

Suggested Citation

Sachs, Stephen E., Dobbs and the Originalists (May 15, 2024). Harvard Journal of Law and Public Policy, Forthcoming, Available at SSRN: https://ssrn.com/abstract=4829599

Stephen E. Sachs (Contact Author)

Harvard Law School ( email )

1563 Massachusetts Avenue
Cambridge, MA 02138
United States
617-495-5009 (Phone)

HOME PAGE: http://https://hls.harvard.edu/faculty/directory/11417/Sachs

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