The Roe v. Wade Court – 1973

Ever wonder whether all Supreme Court decisions are merely a process of the six conservative justices defaulting to the conservative position and the three liberal justices always forced to dissent? When it comes to the hot-button issues of the day, such as abortion, affirmative action, voting rights, LGBTQ rights, and gun rights, justices today almost always hunker down in their respective corners, but on the less heated, less high-profile issues, for example patents and trademarks, there is some crossover, and sometimes even unanimity.

Polarization on hot-button issues wasn’t always as routinely predictable as it is today. A good example is Roe v. Wade, decided almost fifty years ago. In that case, five of the seven justices who voted in the majority were appointed by Republican Presidents, and one of the two dissenting justices was appointed by a Democrat. Forty-nine years later, the six justices who voted to reverse Roe in the Dobbs case were all appointed by Republican Presidents, and the three dissenters were appointed by Democrats. In both the Roe and Dobbs cases, the Republican-Democratic makeup of the court was the same, six Republican-appointed justices and three Democratic-appointed justices.[1] So, what happened between Roe and Dobbs? There were at least two important developments. First, the creation of the Federalist Society and its adoption of a new judicial strategy grounded in what became known as Originalism.[2] Second, the billionaire class, the U.S. Chamber of Commerce, and their allies realized that changing the Supreme Court was a more cost-effective way of making laws more business-friendly and wealth-producing than trying to change Congress. This piece will focus mostly on the first development.[3]

You may have heard the terms “original intent” and “the plain and simple meaning of words in a text” (which I will call “textual meaning” for short). If not, let me familiarize you. Both terms have been in our legal lexicon for a very long time. They are politically neutral, objective principles of constitutional and statutory construction. When original intent is clearly discernible, it can be a very useful tool, and often the decisive tool, in a court’s decision-making process. However, when the original intent of a provision in the Constitution or in law is either unknown, unclear or disputed,[4] its usefulness obviously diminishes. Likewise, if the text is unclear or ambiguous, that is, the plain and simple meaning of the text leads to more than one reasonable interpretation, or none at all, then outside help is required in order to help determine what the text is supposed to mean.

For approximately the first two hundred years of our nation’s existence, the word “originalism” never appeared in the vocabulary of American jurisprudence.[5] In the late 1970s and thereafter it became the cause célèbre of the Federalist Society, originally a group of conservative law students, which grew into a huge organization which now includes lawyers, judges, law professors, and anyone interested in the law, including members of the billionaire class. What they all have in common is spreading their far-right agenda throughout our justice system. Originalism, or the original meaning theory, asks what reasonable persons living at the time of the Constitution’s adoption[6] would have understood the ordinary meaning of the text to be. Originalism’s twin sister, textualism, looks at how the words within the text would be understood, i.e., defined, by eighteenth century Americans, as well as the context in which those terms appear.[7]

You may be asking, so, what’s the difference? I see original intent and textual meaning simply as two important, but non-exclusive rules of constitutional construction. Originalists, it seems to me, have elevated “original meaning” from a rule of constitutional construction to a judicial philosophy[8] that the original intent of the authors of the Constitution must always prevail when interpreting any part of the Constitution. Earlier, I cynically called Originalism a strategy, rather than a philosophy. Why? Because Originalism has become a judicial cudgel which the current Supreme Court supermajority wields in order to disparage and ultimately reverse judicial precedents they don’t like. If a legal precedent, even a well-settled precedent, does not comport with the supermajority’s understanding (emphasis on “the supermajority’s understanding”) of original meaning, then that precedent is in grave danger of being tossed aside and replaced. So far, the supermajority has already gone after abortion and affirmative action,[9] and some justices have intimated a desire to go after cases on contraception and gay marriage.

Here’s my bone to pick with the Supreme Court supermajority’s love affair with Originalism. Take gun safety. If there is one indubitable original meaning embedded in the Constitution, it is the Preamble, written into the Constitution during the closing days of the convention by the Committee on Style. The Preamble, among other things, states the Constitution’s crystal-clear intent to ensure (make certain, guarantee) domestic tranquility (peace and calm, law and order). So far, Originalist judges and justices have interpreted the Second Amendment in such a way as to allow America’s domestic tranquility to be anything but tranquil. Instead of looking at the carnage going on every day out in the streets, and all too frequently in schools, businesses, places of worship, and outdoor gatherings, the Originalists seem to be pondering how eighteenth-century members of America’s male elite class felt about their muskets in the aftermath of Shays’ Rebellion (1786 – 1787), while apparently brushing aside the “well-regulated militia” language, forgetting our overall vision of a more perfect union, and ignoring 230+ years of intervening history between then and now.[10]

How, I ask, can Originalists believe there was a settled consensus on what the Constitution meant for all time, when it was written in mostly general language by a politically diverse group of mostly elite men suffocating in a shuttered room in Philadelphia during the hot summer of 1787, quarreling, compromising and anxious to return home? I have no doubt they created an exceptional document. Nevertheless, it’s a work of polity, not prophecy.

To further my point that the Supreme Court relies on Originalism more as a strategy than a philosophy, Senator Sheldon Whitehouse, in his book The Scheme, points out a handful of cases wherein Originalism did not support the majority’s decision. Nevertheless, the supermajority, by the usual 6 votes to 3, still got the result they wanted.

Again, I must emphasize that this is my understanding of Originalism and Textualism. I’m sure Justices Thomas, Alito, et al., would huff and puff in disagreement, but this is just me talking. This piece was not written on stone tablets atop Mount Sinai – but then again, neither was the doctrine of Originalism.

Nevertheless, picture this: James Madison, author of the Second Amendment, is transported in a time machine and finds himself sitting on the jury trying the 2021 murder case of Kyle Rittenhouse, a seventeen-year-old minor who left his home in another state armed with an AR-15 semi-automatic rifle for the sole purpose of injecting himself into a volatile, potentially violent demonstration on the streets of Kenosha, Wisconsin, allegedly to “protect property.” Instead, Rittenhouse killed two unarmed men and wounded a third man, who was armed with a pistol. To Madison, this is an immature boy who, with no connection to any well-regulated militia, while bearing a weapon whose devastating capacity was unimaginable to eighteenth-century patriots, decided to travel far from his home to be a self-described peacekeeper where he had no business being; and he certainly was not there for the purpose of protecting himself, his home, his property, his loved ones, or even his home state of Illinois. Instead, this unhinged youth purposefully placed himself into harm’s way, and by so doing, he appeared as more of a deadly threat to others rather than as a protector of threats from others. Would Madison be asking himself: Do people today really believe I intended for this kid in that situation with that kind of weapon to be protected by my Second Amendment? Well, the answer from today’s Originalists is, I daresay, yes.[11]

How did the Supreme Court back in 2008 conclude that this is an individual, virtually uninfringeable right despite the fact that the word “individual” does not appear anywhere in the Second Amendment and despite the homeland security purpose explicitly stated therein?[12] Simply put, it’s the conclusion the conservative majority wanted to reach, so they reverse engineered it with ginned-up Originalism and Textualism and, voila, now a self-deputized, posse-of-one teenager has an individual right to wade through an angry demonstration with a weapon of war. Really?[13]

Despite all the homages to Aristotle and virtue ethics, Originalism should be seen for what it really is: a Federalist Society/billionaire donor class gimmick, a concoction of selective historical justifications to push their far-right political and social agenda, to justify ignoring precedents they don’t like, and to radically alter the landscape of American jurisprudence.

Next term the Supreme Court will consider whether the government may forbid people subject to domestic violence restraining orders from having guns. In other words, does the Second Amendment’s individual right (their words, not mine) to bear arms supersede the public’s health and safety interests. Well, back in eighteenth-century America, domestic violence was considered a private matter between the man (king) of the house (castle) and the women and children living under his roof, neither of whom had any rights to speak of. I’m pretty sure Originalism would tell us that a violence-prone head of household back then was allowed to retain his musket despite having a “quarrelsome wife and incorrigible children” living under his roof. Today’s victims of domestic violence live in abject fear of their perpetrators possessing guns, so I’m curious how the Originalist supermajority will decide this case.

Stay tuned.

Coming up next: Part IV: Last Thoughts

[1] The six Republican justices on the Roe v. Wade court consisted of one liberal, two moderates, and three conservatives. The three Democratic justices consisted of two liberals and one moderate. Therefore, there were three conservatives, three liberals and three moderates. The vote was 7 – 2, three liberals, two conservatives and two moderates making up the majority.

[2] I call it a strategy because I can’t bring myself to call it a legitimate principle of constitutional construction, despite learned treatises by some conservative legal scholars seeking to legitimize it.

[3] For more about the second development, I recommend Senator Sheldon Whitehouse’s latest book, The Scheme, How the Right Wing Used Dark Money to Capture the Supreme Court, The New Press, 2023.

[4] Remember, there were 55 delegates to the Constitutional Convention in Philadelphia in 1787, ranging in age from 26 to 81. They came from big states and small states, pro-slavery states and anti-slavery states, and states with very different constituencies and intentions on how a workable republic should operate. Delegates came and went throughout the summer when debates and votes were taking place. Many issues were vigorously opposed and many results were reached, sometimes reluctantly, by compromises which surely did not reflect the true intentions of everyone. Finally, only 39 delegates signed the Constitution. A lot of them were resigned to the notion that it wasn’t exactly what they wanted, but it was the best outcome they could hope for.

[5] The term was coined by Paul Brest, former professor and dean of Stanford Law School in the 1980s, around the same time the Federalist Society was founded. Its most notable architect was Judge Robert Bork and its most famous apostle was Justice Antonin Scalia.

[6] That is, white, propertied males, many of whom owned slaves. The vast majority of American adults, i.e., women, the working class, indentured servants, and those “three-fifths of a person,” better known as slaves, had no voice in the process. Originalists may then argue that the reasonable intentions of the latter groups don’t matter for the precise reason that they had no seat at the table, no voice and no vote. Pretty convenient.

[7] Judges and justices often go to the dictionary for the meaning of words, but which dictionary? Not all are alike, just like all translations of the Bible are not alike. It should also be noted that the first American dictionary was published 41 years after the Constitution was written. And to my knowledge the founding fathers did not write a glossary of terms found in the document.

[8] Legal scholars, such as Robert Bork, did in fact espouse a doctrine, which in my mind is a collection of abstractions, $100 words and sentences of bewildering complexity, suitable only for the eyes and minds of like-minded LL. Ds (doctorate-level academic degree in law). Such writings may be important in academia, but not so much in the courtroom.

[9] In essence, the supermajority did not declare abortion unconstitutional, but only that Roe v. Wade violated Originalism and had to go. The court did hold affirmative action in school admissions unconstitutional. Thus, unlike the affirmative action cases, abortion was not outlawed, but was left for the voters to decide. Affirmative action in school admissions, however, is dead.

[10] When the Constitution was written (1787), America was a sparsely populated, agrarian society. The Industrial Revolution had not yet reached North America – no railroads, big factories or steamships. There were only three big cities. Elegant country living was the gold standard of lifestyles. Only propertied men could vote. A white man’s home was his castle and he was king. Women had practically no rights. Only four years prior to ratification (1785), every state allowed slavery. Americans believed their air and water would always be pure; that their country’s natural resources would last forever, and that taking and using them would neither harm the environment, nor affect climate. Addictive, carcinogenic tobacco was a mainstay of the economy. Oil came from whales, not from beneath the ground. Commerce and financial structures, including the stock market, were uncomplicated and grounded in trust. There was no central bank. The idea of corporations trying to capture and control government was unthinkable. They believed an ocean would protect them from European wars. There was no standing army. Immigration of millions of people from countries other than Great Britain was unimaginable.

[11] If there had been a law in effect at the time which criminalized Rittenhouse’s open possession of his AR-15, and a constitutional challenge of that law came before the Supreme Court, I suspect the court would have struck it down. Anyway, I made up the Madison scenario only to emphasize how far, in my opinion, we have strayed from the original purposes which, I believe, the Second Amendment was intended to achieve.

[12] By the way, in 18^th century England, our mother country, despite civil wars, foreign invasions and insurrections, only allowed Protestants to bear arms and for only two purposes: hunting and for protection from “Papists” (a tiny Roman Catholic minority). Today, most of Europe is covered by strict gun laws, and its citizens are much safer than ours.

[13] The Supreme Court has yet to weigh in on many gun safety issues, such as universal background checks, red flag laws, ghost guns, banning assault rifles, and the latest: the manufacture and marketing of smaller, lighter assault rifles for small children. If the past is prologue, the court’s supermajority will surely disappoint the majority of Americans who favor gun safety laws. I’m afraid the only way to protect most gun safety laws from dying in this Supreme Court is for there to be a new constitutional amendment on the subject. Not likely.