The dispute over originalism is fundamentally an American dispute. The question as it is usually framed deals with what the authors and the people who ratified the United States Constitution understood a constitutional provision to mean. This debate usually takes place at the level of text and history. However, in one of the foundational documents of originalism, Robert Bork’s 1971 Indiana Law Journal essay, the concerns motivating originalism are set forth with admirable clarity. Bork saw the Warren Court as imposing its values in an unmediated, unprincipled way, which for him was a crisis for the Court’s legitimacy and authority. His formulation of originalism, while idiosyncratic, was ultimately an attempt to mediate and regulate the enforcement of values by the courts. In this project, Bork finds an unusual antecedent: Carl Schmitt.
Continue reading “Originalism and the tyranny of values”Month: March 2021
A Crucial Experiment
Life and law being messy, there is rarely a crucial experiment available to test competing views. But in the recent controversy over the conservative legal movement’s strategy with respect to abortion, we have a test that is as good as we are likely to get: the pending certiorari petition in Dobbs v. Jackson Women’s Health Organization, in which the lower courts struck down Mississippi’s ban on abortions after 15 weeks (with various exceptions). The cert petition squarely asks, in its first question presented, “[w]hether all pre-viability prohibitions on elective abortions are unconstitutional.” It is a head-on challenge to the Roe v. Wade framework.
A voice of the originalist establishment has said that “it is unlikely that there will ever be a more opportune vehicle” to reconsider Roe, and this is exactly right; Dobbs presents a choice opportunity. Four votes are needed to grant cert. There are now six GOP-appointed Justices on the Court, including three Trump appointees (Justices Gorsuch, Kavanaugh and Barrett, in order of appointment) who were openly screened by the Federalist Society. If four votes cannot be found among these six even to consider a square challenge to Roe, it seems well past time to take stock of the conservative legal movement’s approach to abortion, and well past time for some accountability — ideally self-imposed accountability — on the part of the movement’s leaders. Of course, even a grant, although welcome, will hardly guarantee success on the merits. But if a supermajority of GOP-appointed Justices are unwilling even to consider the issue, something has gone very wrong.
The Rule That Brought Us To This Place
John Finnis’s recent piece in First Things, “Abortion is Unconstitutional,” has sparked a great deal of controversy in conservative legal circles in the short time since it was published. In his piece, Finnis argues on originalist grounds that the Fourteenth Amendment prohibits abortion, and that the Supreme Court should therefore reverse Roe v. Wade and declare abortion unconstitutional. (This argument is similar to one given earlier by Josh Craddock.) Finnis argues that abortion is precluded by the original public meaning of “person” as used in the Fourteenth Amendment’s Equal Protection Clause or its Due Process Clause. One might be forgiven for thinking that such an argument, from such a man, in such a publication would be entirely uncontroversial in pro-life circles.
Continue reading “The Rule That Brought Us To This Place”