Wednesday, December 08, 2021

Abortion, Guns, and the Irrelevance of Text to Constitutional Law

By Eric Segall

During the Supreme Court's oral argument in Dobbs v. Jackson Women's Health Organization last week, there was relatively little mention of constitutional text. For over 50 years, conservative critics of Roe and Casey have argued that these cases were wrongly decided because the right to terminate a pregnancy is not in the Constitution. Yet, during the Dobbs argument, the conservative Justices seemed to just assume that Roe and Casey were incorrect and argued instead about whether viability is an appropriate or arbitrary line (Roberts), whether changes in adoption access undercut abortion jurisprudence (Barrett), and whether the states could criminalize reckless behavior by pregnant women (Thomas). But arguments about or referring to constitutional text were largely absent.

One explanation for the lack of substantial discussion about text by the Justices might be that they agree with Professor Ilya Somin who recently argued over at the Volokh Conspiracy that, although he takes no position on whether the right to choose should be constitutionally protected, the fact that this right is not explicitly mentioned in the Constitution does not support the overruling of Roe and Casey.

Professor Somin said the following:

It is true that a right to abortion is nowhere specifically mentioned in the Constitution. If it were, that would have made Roe and subsequent cases much easier to decide. But it doesn't necessarily follow that there is no constitutional right to abortion.

Some parts of the Constitution establish very clear and specific rules, such as that each state gets two senators, and that the president must be at least 35 years old. But many others state broad, general principles that courts must then apply to specific cases.... The case for a right to abortion comes down to whether that right falls within the scope of broadly phrased parts of the text, such as the 'liberty' protected by the Due Process clauses of the Fifth and Fourteenth Amendments, or the 'equal protection of the laws' (also part of the Fourteenth Amendment). Some defenders of Roe argue that a right to abortion is necessary to ensure 'equal protection' for women.... None of the above by itself determines whether the Constitution protects a right to abortion (an issue I will leave to others). But it can help clear away some of the underbrush of bad arguments surrounding the question. The issue cannot be resolved simply by pointing out that abortion isn't specifically mentioned in the Constitution.

Professor Somin is right and could also have pointed to many Supreme Court cases either protecting rights not mentioned in the Constitution or establishing limits on federal power also nowhere to be found in the constitutional text. The Court has said that parents have the right to raise their children as they see fit and that competent patients have a right to refuse unwanted medical treatment even though neither "right" is spelled out in the Constitution's text (and ironically both cases could easily be persuasive precedent for finding a right for women to have abortions). Similarly, the Court's conservatives have said that Congress cannot treat different states differently absent a strong (not just rational) reason to do so, and that Congress cannot subject states to suits for damages by their own citizens under federal law even though neither limit is mentioned in the constitutional text.

The reality is that arguments deriving from constitutional text cannot justify either protecting or denying a right for women to terminate the pregnancies. Values, principles, and politics inevitably dictate how judges rule on the abortion question.

There was also little discussion of constitutional text during the oral argument in New York State Rifle & Pistol Association Inc. v. Bruen, involving a challenge to New York's permit requirements for people who wish to carry handguns outside the home. Perhaps the reason for that absence was that New York was not asking the Court to overrule District of Columbia v. Heller, where the Court for the first time held that the Second Amendment applies outside the militia context. Here is the Second Amendment's text:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

In Heller, the Court divided 5-4 as to whether this language (and its original meaning) protects the right of individuals to own guns or whether the text was limited to the use of guns in state militias. One could read this text 1000 times but there is no clear answer and its applicability outside the militia context must be determined by judges employing other methods of constitutional interpretation, such as recourse to history, policy, federalism, and  personal values and experiences. 

What is true for guns and abortion is also true for virtually every other area of litigated constitutional law, as Professor George Thomas recently demonstrated in a wonderful new book titled "The (Un) Written Constitution." Discussing the freedom of speech and religion, separation of powers, federalism, due process, gun control and numerous other issues, Thomas concludes the following:

The Power of the Supreme Court to find laws unconstitutional turns on unwritten concepts and understandings. Our recurrent debates in the American constitutional tradition are about the best unwritten ideas and principles--about, we might say, the best understanding of the political theory that underlies the Constitution.... To what degree should tradition, precedent, and prudential considerations inform our interpretation of text? We won't find answers to these questions in constitutional text. Yet we cannot escape these questions. They lurk behind our debates on how to best understand the Constitution, and they largely turn on unwritten ideas.

For similar reasons, Professor Akhil Amar wrote a book titled "America's Unwritten Constitution," and Professor Laurence Tribe authored a book titled "The Invisible Constitution." The irrelevance of text to the resolution of litigated cases is also why I wrote an essay for the Harvard Law Review Forum titled, The Constitution Means What the Supreme Court Says it Means." I was responding to Professor David Strauss's Harvard Law Review article, "Does the Constitution Mean What It Says?" In that article, Strauss persuasively demonstrated that the Supreme Court's decisions regarding the Constitution are just another form of common law. According to Strauss, the Justices rely mostly on their own non-textual opinions to fashion doctrines across the range of litigated constitutional issues.

It is past time that we fully accept that the Supreme Court's opinions across the vast spectrum of cases involving rights, federalism, and separations of powers--whether they are authored by liberals, conservatives, or moderates--do not turn on the Constitution's text but rather on unwritten principles, policies, and values. Given that reality, and that unlike the case with common law courts, legislatures cannot overturn Supreme Court decisions, maybe we should be questioning how much power the Court should actually exercise. 

Postscript: Although the abortion's-not-in-the-text argument should be unpersuasive, it is extremely familiar. For example, it features prominently in Justice Scalia's Casey dissent and in Mississippi's brief in Dobbs. Accordingly,  Mike argues in his new Verdict column that Justice Kavanaugh was being deliberately misleading during the Dobbs argument when he pretended to ask the lawyer for Mississippi whether the state was seeking national criminalization of abortion. Although that is an ultimate goal of many people who oppose abortion, Justice Kavanaugh and the other Justices know full well that in this case the state is simply seeking the power to criminalize abortion in Mississippi.