Excerpted From: Reva B. Siegel, The History of History and Tradition: The Roots of Dobbs's Method (And Originalism) in the Defense of Segregation, 133 Yale Law Journal Forum 99 (November 6, 2023) (282 Footnotes) (Full Document)



RevaBSiegel.jpegIn Dobbs v. Jackson Women's Health Organization, the Supreme Court plays memory games, employing stories about the past to legitimate its decision overturning a half-century of women's rights. To justify reversing Roe v. Wade, Dobbs declared Roe, like “[t]he infamous decision in Plessy v. Ferguson,” “'egregiously wrong’ on the day it was decided,” and argued that Roe lacked grounding in the nation's history and traditions of banning abortion. The Roberts Court was asserting that in overturning Roe, it was acting as the Warren Court had in overturning Plessy--that Dobbs was like Brown v. Board of Education. Justice Alito evoked this comparison multiple times, suggesting that his opinion in Dobbs liberated the nation from pernicious judicial lawmaking and restored democratic values that had been abrogated by activist judges in the past.

Constitutional memory has a politics. Dobbs determined that the liberty Roe protected was not part of the nation's history and traditions by counting the number of states that criminalized abortion at the time of the Fourteenth Amendment's ratification. In so doing, as this Essay shows, Dobbs employed a method of interpreting the Fourteenth Amendment that Plessy's defenders had used when they counted states that segregated education at the time of the Amendment's ratification, and that was carried into abortion jurisprudence by Justice Rehnquist in his Roe dissent--a dissent authored just over a year after his confirmation, where debate focused on Rehnquist's support for Plessy while clerking for Justice Robert Jackson during the arguments in Brown.

Excavating this history serves several critical ends. First, it demonstrates the workings of constitutional memory. Imagine if the Dobbs Court had said: We reject the modes of determining history and tradition employed in prior substantive due process cases and find our authority to reverse Roe in the method of interpreting the Fourteenth Amendment that segregationists employed to defend Plessy in the Southern Manifesto. That too would state Dobbs's relation to Brown, but for most Americans it would discredit the Court's decision, rather than imbue it with authority. This counterfactual demonstrates how the exercise of public power can be legitimated by appeals to the past--through historical claims that are true or false, or selective, as many of Dobbs's claims about the past are. A first aim of the history this Essay recovers is to counter Dobbs's legitimating constitutional memory claim by demonstrating the many ways Dobbs resembles Plessy, not Brown.

As importantly, recovering this history connects debate over the Court's recent decisions with some of the great constitutional controversies of the last three-quarters of a century. Americans have repeatedly struggled over the question whether application of the Constitution's guarantees should conform to particular expectations and practices in the deep past or evolve in intergenerational debate. It is striking and perhaps even grotesque that Dobbs counted the same number of states banning abortion in 1868 as the Southern Manifesto counted states segregating schools in 1868. However important it is to revisit this history--both to correct errors in Dobbs's count and to examine the Court's constitutionally significant omissions is just as important to ask why the Court interpreted the Fourteenth Amendment by counting state practice in 1868, and to examine the reasons the Court gave for turning to history as it did.

Counting states can serve different ends. It can support or restrict the evolving application of constitutional guarantees and it can expand the authority of the national government or the states. In Dobbs, the Court counted states banning abortion in 1868 to limit the Fourteenth Amendment's meaning to the expectations and practices of lawmakers in the mid-nineteenth century, and to return power to local majorities in the states. Dobbs appeals to different structural values than the practices of state-counting that the Court has employed to justify expanding federal constitutional rights example, in decisions that incorporate federal rights against the states or appeal to evolving contemporary understandings as a reason to build out the scope of federal rights. These practices of state-counting seek to identify an emerging consensus that can support the exercise of federal power. In Dobbs, by contrast, counting state practice at the time of the Fourteenth Amendment's ratification serves to restrict the application of the Fourteenth Amendment's guarantees to the particular expectations, intentions, and actions of legislators who ratified it and thus to insulate a wide range of practices from federal constitutional review.

In determining the Fourteenth Amendment's meaning through its ratifiers' practices and expectations, Dobbs employed a method used by Plessy's defenders in arguments that Brown refused to accept. The Warren Court rejected claims that the Fourteenth Amendment's meaning resided in these expectations, intentions, and practices, and in methods of interpretation that would entrench the South's prior practice against constitutional challenge. It understood that a nation lives through its commitments and values as well as its practices and would not allow past practice alone to define what America's Constitution means.

Brown reasoned that equal protection prohibited racial segregation, because separating children “solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.” Instead of limiting the Constitution's meaning to the particular expectations, intentions, and practices of its ratifiers, the Warren Court interpreted the Fourteenth Amendment's guarantees at a higher level of generality, taking into account the experience and perspectives of subsequent generations. Instead of deferring to local majorities in ways that would perpetuate the Constitution's democratic deficits, the Warren Court interpreted the Fourteenth Amendment to protect the equal participation of those originally locked out of the political process. Brown is renowned because it demonstrated how fidelity to the rule of law can be transformative. For generations Brown has exemplified the living Constitution. In the wake of Brown, it was widely understood that the Equal Protection Clause should be interpreted at this higher level of generality, as forward-looking, not backward-looking, and not appropriately interpreted by appeals to history and tradition.

This debate over interpretation in Brown--whether to limit the meaning of the equal protection guarantee to the particular expectations, understandings, and practices of its ratifiers or to read the guarantee as applying to practices that might not have been contemplated by its ratifiers-- sheds light on the conflicts now engulfing substantive due process law. Justice Rehnquist counted state practice in 1868 to interpret the liberty guarantee in his Roe dissent, the Reagan Administration employed the method in a brief calling for Roe's overruling, and a majority of the Supreme Court employed the method to define protections for intimate and family relations in Bowers v. Hardwick, prompting conflict that led the Court to reverse the decision. Not only Roe, but Planned Parenthood v. Casey, Lawrence v. Texas, and Obergefell v. Hodges emerged from a debate over whether courts applying the Constitution's liberty guarantee should look for guidance to the nation's traditions understood at a high level of generality--or fixed by practice at the time of the Fourteenth Amendment's ratification. In Casey, Lawrence, and Obergefell, the majority refused to tie the Constitution to particulars of past practice and appealed to equality in defending an evolving application of the Constitution's liberty guarantees.

For decades the Court interpreted the Fourteenth Amendment's liberty guarantee as the Court in Brown had: transformatively, reasoning about the nation's traditions at a high level of generality to vindicate understandings of liberty and equality that those who ratified the Fourteenth Amendment did not all share. Justice Kennedy reasoned in the spirit of Brown as he explained in Obergefell:

The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution's central protections and a received legal stricture, a claim to liberty must be addressed.

It was not until after Justice Kennedy's retirement that a Supreme Court constituted to reverse Roe and Casey attacked prior cases for reasoning about liberty “at a high level of generality” and employed state-counting in 1868 to justify overturning the abortion right--while claiming the Court was acting on the model of the Warren Court in Brown. Examining the history of Brown that Dobbs omitted shows that the Dobbs Court was not acting on the model of the Warren Court in Brown; it was employing a method rooted in the defense of segregation.

Just as importantly, the history this Essay examines helps us think critically about the justifications Dobbs offered for the method it employed to determine the nation's traditions of liberty. Dobbs defended its use of state-counting in 1868 to enforce the Fourteenth Amendment's liberty guarantee as providing a disinterested standard that would prevent interpreters from reasoning from their values and so protect democracy in the states. The history this Essay examines refutes each of these claims. Counting states that segregated education in 1868 was not a neutral measure of the Constitution's meaning; it perpetuated political inequalities of the past into the future. The democracy it supported was a thin majoritarianism--democracy without rights that protected the participation of those historically excluded from the democratic process. In other words, it is an account of democracy more like the account defended in Plessy than in Carolene Products Footnote Four or in Brown itself--decisions that help legitimate majoritarianism by protecting the infrastructure of democratic participation.

In tracing the argument that state laws in 1868 are proxies for the understandings of the Fourteenth Amendment's ratifiers, this Essay uncovers debates of the past that show how originalism and Dobbs's history-and-tradition method grew out of resistance to Brown and backlash to decisions of the Warren and Burger Courts. Locating debates over interpretive method in the political conflicts in which they arose enables us to evaluate justifications for these methods--to assess whether the methods deliver the goods they promise. Examined in this context, it is easier to see how Dobbs's turn to history is not disinterested, but instead interested, and serves to veil rather than to constrain the interpreter's values. Examining interpretive methods and their justifications in the political contexts in which they grew demonstrates how Dobbs's method conceals dynamic forms of interpretation and enforces disempowering forms of democracy. The Essay's history should illustrate this even for readers who are not prepared to recognize the debate over segregation as a source of Dobb's method.

In other words, this Essay refutes the claim that Dobbs is like Brown on terms that contribute to contemporary debates in constitutional law and theory. In refuting the claim that Dobbs is like Brown, the Essay examines the growth of prominent forms of originalism and traditionalism and evaluates their justifications. It asks whether judges applying constitutional standards tied to particular expectations and practices in the deep past are more constrained than judges who do not, the question at issue in judicial debates over “levels of generality”; and it considers conditions in which enforcement of fundamental rights can threaten--or promote--democracy. Understanding how Americans have disputed these questions over the last three-quarters of a century is critically important for the practice of law--as Americans debate Dobbs's legitimacy and debate how, if at all, Dobbs should guide federal and state courts in interpreting liberty and equality guarantees.

The Essay unfolds in three parts. Part I of this Essay shows that in Dobbs the Court appealed to Brown as authority for overturning Roe while it justified reversing Roe through modes of interpretation that the Southern Manifesto employed to advocate resistance to Brown. It will then show how, once it was no longer acceptable to defend segregation, conservatives redirected these forms of argument to defend other contested practices, including laws banning abortion and sodomy. This history shows how over time claims on original intention were abstracted away from the open defense of segregation and redirected toward defending traditional ways of life in a wider range of contexts.

The Essay next examines the justifications Dobbs offered for its state-counting method--that counting states banning abortion in 1868 would constrain judges from reasoning from their values and thus protect democracy. Part II interrogates the claim that examining the practices of those who ratified the Fourteenth Amendment offers an objective and impersonal proxy for its meaning, first showing how the method advanced interpreters' values in the debate over segregation and then demonstrating this in a several-decade debate between Justice Kennedy and Justice Scalia over substantive due process law. Examining justifications for interpretive methods in political context makes vivid how in debates over abortion and gay rights, as in the debate over segregation, a backward-looking standard that appears to fix the Constitution's meaning in the past in fact vindicates the interpreters' values and functions as a veiled form of conservative living constitutionalism.

Part III shows how examining the history of Dobbs's method and its justifications changes the questions we ask of Dobbs's claim that overturning Roe promotes democracy. Dobbs reasons about constitutional rights as an illegitimate intrusion on democratic self-government--as Plessy did--rather than a necessary precondition of democratic self-government--as Brown did. Dobbs defines the Constitution's liberty guarante through lawmaking in 1868 from which women and minorities were excluded, and the democratic processes it sanctions perpetuate these same political inequalities, as this Essay demonstrates through an account of race and gender conflicts over the abortion bans Dobbs authorized in Mississippi. In Mississippi politics we can see how the liberty and democracy Dobbs protects entrench the political inequalities of 1868.

[. . .]

Stories about abortion policy offer a window into the democratic process, illustrating how the infrastructure of representation perpetuates the nation's history and traditions of inequality. Generations after enfranchisement, groups that were deemed unfit to vote on the Fourteenth Amendment's ratification are still struggling to make their voices heard in the political process. This is as true after Dobbs as it was before Roe.

In the wake of Dobbs, lawmakers in Mississippi held a hearing to consider policies the state might adopt in response to its abysmal health rankings. Black women walked out and held a press conference entitled “We Are the Data” to draw attention to the fact that “Black women and babies experience a disproportionate share of the state's highest-in-the-nation rates of stillbirth, low birth weight, and infant mortality” to “complain[] about a lack of Black women on the Senate committee--only one of the nine members--and among [the legislative hearing's] presenters.” “What we're asking for here is just a right to life,” one of their organizers emphasized.

The scene echoed another over a half-century earlier. In 1969, the New York legislature held hearings on reforming its abortion law in which the experts called to testify included fourteen men and one nun, prompting women to walk out and hold the first abortion speak-out in a church in Greenwich Village. They emphasized the myriad harms that abortion bans inflicted on women, but especially on poor women and women of color. These speak-outs not only shaped the movement's organizing but its arguments in court where women turned as they struggled to make themselves heard in a constitutional order in which they had long been marginalized.

Claimants in the modern substantive due process cases “turned to the courts in part because they faced forms of subordination and stigma that silenced them and impeded their democratic participation .... [They faced] the kind of deliberative blockages at issue in equal protection cases like Brown--cases understood to be paradigmatic exercises of judicial review within the Carolene Products framework.”

The Supreme Court in Roe and then in Casey responded, in the spirit of Brown, to the ways that inequalities impeded women's participation. But Dobbs responded in the spirit of Plessy. Before overturning the abortion right, Justice Alito reached out in dicta to assert that the Court was powerless to consider women's equality--taunting, before he rejected a half-century of abortion-rights precedent, that the question of whether state coercion of pregnancy presented questions of equal protection was “squarely foreclosed by [the Court's] precedents.”

Nor did Dobbs view women's reliance on the abortion right in making decisions about their bodies and lives as implicating a liberty of constitutional consequence. Dobbs disparaged women's dignitary, health, emotional, economic, and social interests in a right to control decisions about childbearing--that federal courts had protected for a half-century--as “novel and intangible,” taunting that federal courts were institutions better suited to protect “concrete reliance interests ... in 'cases involving property and contract rights.”’

In unleashing abortion bans on women and authorizing coercion deemed unconstitutional for a half-century, Dobbs declared that questions concerning the “empirical ... effect of the abortion right on society and in particular on the lives of women” were something that the “Court has neither the authority nor the expertise to adjudicate.” One can hear echoes of segregation's defenders dismissing Black Americans' claims for equality as mere “sociology,” not law.

The voice of Plessy speaks through Dobbs when the Court declares that the Constitution is indifferent and impotent to intervene. It is blasphemous that Dobbs claimed the authority of Brown to enforce the Constitution as Plessy's defenders did. We test our Constitution's character, on this first anniversary of Dobbs and seventieth anniversary of Brown, in calling for Dobbs to meet Plessy's fate.

Nicholas deB. Katzenbach Professor of Law, Yale University.