Abortion and Original Meaning
Constitutional Commentary, Vol. 24, No. 101, 2007
62 Pages Posted: 21 Aug 2006 Last revised: 14 Apr 2008
This article argues that the debate between originalism and living constitutionalism offers a false dichotomy. Many originalists and their critics improperly conflate fidelity to the original meaning of the constitutional text with fidelity to how people living at the time of adoption expected that it would be applied. That is, they confuse original meaning with original expected application.
Constitutional interpretation requires fidelity to the original meaning of the Constitution and to the principles that underlie the text, but not to original expected application. This general approach to constitutional interpretation is the method of text and principle. This approach is faithful to the original meaning of the constitutional text, and to its underlying purposes. It is also consistent with the idea of a basic law that leaves to each generation the task of how to make sense of the Constitution's words and principles in their own time. Although the constitutional text and principles do not change without subsequent amendment, their application and implementation can. That is the best way to understand the interpretive practices characteristic of our constitutional tradition and the work of the many political and social movements that have transformed our understandings of the Constitution's guarantees. It explains, as other versions of originalism cannot, why these transformations are not simply mistakes that we must grudgingly accept out of respect for settled precedent, but are significant achievements of our constitutional tradition.
The article applies this method to the most contentious constitutional issue of our generation - the constitutional right to abortion. It concludes, contrary to conventional wisdom, that the constitutional right to abortion is consistent with the original meaning of the Fourteenth Amendment, and, in particular, its prohibition on class legislation that is embodied in the Equal Protection Clause.
The article criticizes Roe v. Wade's original trimester system, arguing that there are actually two rights to abortion instead of one. Finally, it explains how courts might have better implemented the constitutional guarantee of the two rights to abortion in ways that are more respectful of democratic politics.
[This article will appear in 24 Constitutional Commentary (2007). A response to critics, expanding on the some of the key ideas of the article, appears in Original Meaning and Constitutional Redemption, 24 Constitutional Commentary (2007), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=987060]
Keywords: Abortion, Originalism, Interpretation, Equal Protection, Living Constitution
JEL Classification: K10
Suggested Citation: Suggested Citation