Abortion, Guns, Affirmative Action and Fake Textualism and Federalism

By Eric Segall

Last June in the Dobbs decision, the Supreme Court gave the American people a firm lecture on the importance of textualism and states' rights. The majority opinion written by Justice Alito repeatedly argued that, because the right to terminate a pregnancy is not in the Constitution's text and was not protected as an original matter in 1789 or 1868, the difficult issue of abortion should be left to the states. Justice Alito wrote the following:

Abortion presents a profound moral issue on which Americans hold sharply conflicting views.... For the first 185 years after the adoption of the Constitution, each State was permitted to address this issue in accordance with the views of its citizens. Then, in 1973, this Court decided Roe v. Wade.... Even though the Constitution makes no mention of abortion, the Court held that it confers a broad right to obtain one. It did not claim that American law or the common law had ever recognized such a right.

The plaintiffs and amici in Dobbs argued that the right to terminate a pregnancy is closely related to other unenumerated rights the Court had recognized in the past, such as the right of adults to refuse unwanted medical treatment, the right to use contraception, and the right to same-sex marriage. In response to those arguments, the Dobbs majority said that those and other non-textual rights were different because abortion destroys "fetal life" or an "unborn human being." The majority concluded the following:

It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives. The permissibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting. That is what the Constitution and the rule of law demand.  

Before turning to guns and affirmative action, it is important to recognize that as a matter of internal critique, Dobbs fails badly. Others have criticized Alito's misuse of history but I want to focus on his textual conclusions. He did not deny the existence of non-textual fundamental rights such as the right to contraception and the right to control one's own body. The difference he said, as noted above, is that those rights don't involve the destruction of a fetus or an "unborn human being." 

But the conclusion that the existence of a fetus trumps a women's right to control her body (and life) cannot be gleaned from the Constitution's text. The nature of the fetus and the balancing of the states' interest in the fetus against a woman's right to choose are questions that simply cannot, contrary to the majority's false rhetoric, be answered by only examining the words of the Constitution. The Court could easily have concluded that the right to terminate a pregnancy was part of or subsumed under the fundamental right to control one's own body, and its refusal to do so was not based on text but on the personal values and policy judgments of the Justices.

Also last term, the Court in the Bruen case strengthened gun rights under the Second Amendment. The Justices assumed the correctness of prior cases holding (quite unpersuasively) that the text of the Amendment protects an individual right to own guns and concluded that restrictions on that right must be justified by history and tradition. The Court said that policy arguments about public safety were not part of proper constitutional analysis. 

The Bruen majority did not pause to consider that highly controversial policy judgments were at the center of the Dobbs decision. More importantly, Americans disagree strongly about proper gun laws and at the federal level the personal right to own guns did not exist until 2008 when the Court handed down the Heller decision. 

Decided within days of each other, Dobbs emphasized the need to allow states to control important and contestable decisions regarding the balance between a women's right to control her own body and the states' interest in the fetus, while Bruen largely disabled the states from making crucial determinations about the appropriate balance between gun rights and gun safety. Politics and values, not text or history, distinguish these two cases.

Next Monday the Court will hear two affirmative cases, as I previously summarized on this blog. It is extremely likely that the conservative justices will rule that university admissions must be color-blind and that the use of racial criteria in admissions violates the equal protection clause of the 14th Amendment. But all the arguments the Court used in Dobbs to justify leaving the issue of abortion to the states (or Congress, which also consists of "the people's elected representatives") apply equally (or maybe even more so) to affirmative action. 

The phrase "color-blindness" is not in the text of the Constitution, and there is nothing in the text that says colleges and universities are disabled from using racial criteria to make up for our racist past or to increase diversity on our nation's campuses. The text of the 14th Amendment, which says "no state shall deny any person the equal protection of the laws," simply cannot be reasonably read to prohibit all uses of racial criteria in all contexts. Moreover, as many scholars have argued, the original meaning of the equal protection clause was about making sure the newly freed formerly enslaved people would be treated equally under the law, not that the state and federal governments could never employ race to make it easier for Blacks (and today other people of color) to participate equally in government programs such as public colleges and universities. 

As far as tradition is concerned, states have never acted in a color-blind fashion. We went from slavery to the Black Codes to segregation to affirmative action programs in the late 1960's early 1970's. The Justices might think color-blindness is the best policy, but there is absolutely nothing in text, history, or tradition that justifies the Justices mandating it as a national rule. Moreover, if the states want to prohibit all racial criteria in admissions they know how to do so, as ten states have already done that through normal democratic measures. 

Abortion, gun control, and affirmative action all raise difficult questions that require the Justices to balance conflicting values. Text and history simply do not and cannot resolve these issues. But if the conservative Justices meant what they said in Dobbs, the balance between gun rights and public safety and the use of affirmative action by public colleges and universities should also be left to the states to decide. As to both gun control and affirmative action, this should be the conclusion of decisions on these issues: 

The permissibility of affirmative action, and the limitations upon it, and the proper balance between gun use and public safety, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting. That is what the Constitution and the rule of law demand.  

If only the Court actually believed in the rule of law.