Originalism is Just Selective History

When Justice Amy Coney Barrett joined the Supreme Court in 2020, conservatives celebrated that “there are now four avowed originalists on the Court.” To those on the right, the latest version of the Roberts Court had the potential to be the greatest originalist Court in history. But this term’s biggest decisions show how wrong those conservatives were—even as they got all the results they wanted.

Although conservative originalists have for years been touting their method as restrained, sensible, and tightly tethered to constitutional text and history, this term blew away such pretenses. If this is the great conservative originalism, then those professing it have finally and conclusively revealed it to be what many skeptics already considered it: a hollow edifice designed to hide an ugly and aggressive ideological agenda.

This is a radical Court dominated by conservatives who treat the past practices of state legislatures as determinative of the Constitution’s meaning, warping the broadly worded language that was meant to enshrine fundamental principles of liberty and equality in our national charter. This is a Court that insists it is following history and tradition where they lead, while cherry-picking the history it cares about to reach conservative results. These are damning moves for conservative justices who pride themselves on fidelity to the Constitution’s first principles.

Let’s start with Dobbs v. Jackson Women’s Health Organization, where a five-justice majority overruled Roe v. Wade and, for the first time in history, stripped away a previously announced constitutional right essential to bodily integrity and equal citizenship. Dobbs offers one of the most crabbed views of liberty in Supreme Court history. Justice Samuel Alito’s majority opinion presents liberty as an empty idea. According to Alito, “‘liberty’ is a capacious term” with hundreds of possible meanings. Because it could mean anything, Alito claimed, courts should be extremely loath “to recognize rights that are not mentioned in the Constitution.” Alito’s stingy view of liberty is driven by his fear that courts will inevitably engage in “freewheeling judicial policymaking” in the guise of protecting liberty. The Dobbs majority turned to “history and tradition” to stop courts from safeguarding unenumerated fundamental rights, beginning with the right to abortion.

Alito’s account of “history and tradition” ignores the most salient aspect of the Fourteenth Amendment’s history: the horrific abuses that led the Framers of the Fourteenth Amendment to push through changes to the Constitution to broadly guarantee the protection of substantive fundamental rights. The through line from the abolitionist critiques of slavery to the debates over the Thirteenth and Fourteenth Amendments was the idea that slavery was built on the denial of bodily integrity, coerced reproduction and the rape of enslaved women, and the tearing apart of Black families. Alito’s sweeping condemnation of unenumerated fundamental rights ignores the fact that the Fourteenth Amendment sought to guarantee rights to bodily integrity and to marry and raise a family, and the right to decide for oneself whether, when, and with whom to form a family.

In short, reproductive freedom is in the Constitution. Alito simply refuses to grapple with the Constitution’s true history.