The Supreme Court has overruled its decisions in Roe v. Wade and Planned Parenthood of Southeastern Pa. v. Casey. The decision in Dobbs v. Jackson Women’s Health, penned by Justice Samuel Alito, and joined by Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, makes it clear that Roe and Casey were wrongly decided and protected rights not actually deeply rooted in the history and tradition of the United States. As a result, the Supreme Court has held that the states are free to craft for themselves regimes of abortion regulation, subject to rational basis review.
When Justice Alito’s draft was leaked, I expressed concerns about what I have called “Little Giant Constitutionalism,” referring to Stephen Douglas’s position in the Lincoln-Douglas Debates. The Dobbs opinion takes a contentious national issue and makes it…a contentious national issue. This is by no means a problem if you are a positivist or a relativist. If, however, you believe that there are principles of the natural law at stake, putting them to a vote is hardly a welcome prospect. But that is as good, it seems, as it is going to get under Dobbs. As Adrian Vermeule has noted, Justice Kavanaugh, who seems to be the critical fifth vote in the Dobbs opinion (remember that Chief Justice John Roberts concurred only in result and scolded the majority for going as far as overturning Roe and Casey), was at pains to distance himself from the Fourteenth Amendment personhood argument.
And we will see how my concerns play out. At the moment, there is much cause for celebration. The Dobbs decision has been fifty years coming, and millions of men and women across the United States (and indeed around the world) have worked and prayed and hoped during those fifty years to see the day when Roe and Casey were no longer the law of the land. It is worth noting that Dobbs was handed down on what would have been Nellie Gray’s ninety-eighth birthday. Of course, the celebration in pro-life circles has been slightly tempered. Some voices, like Ed Whelan of the Ethics and Public Policy Center (now headed by Ryan T. Anderson), have suggested that “purists” ought not to insist on “maximalist” measures. Others, like Robert P. George, have said that Dobbs is not an occasion to exult over the reasonable people of goodwill on all sides of the abortion debate.
Of course, regulatory-reform purists are permitted to insist upon maximalist measures, such as finding district court judges willing to reinvigorate the nondelegation doctrine or the major questions doctrine against regulations they find noxious. And one is rarely scolded for exulting over the passage of tax cuts, even if there are reasonable people of goodwill who prefer greatly higher marginal rates on individual income, corporate income, and long-term capital gains. But the intra-right tone policing can wait for a little while. Roe and Casey have passed, as the editors said on Friday, into history. This is worth celebrating without reservation.
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But perhaps we can take a moment, after our champagne toasts to the Dobbs majority, to examine critically certain aspects of the decision that ought to give those of us committed to the classical legal tradition a little indigestion. In his opinion for the Court, Justice Alito criticized Roe v. Wade for a “survey of history” that “ranged from the constitutionally irrelevant” to the “plainly incorrect.” Justice Alito offered an example of the “constitutionally irrelevant” material in the Roe decision: “its discussion of abortion in antiquity.” Justice Harry Blackmun’s analysis of Roman legal treatment of abortion has been criticized, recently by Professor Grzegorz Blicharz in the Harvard Journal of Law and Public Policy’s Per Curiam feature. But Justice Alito does not say that Justice Blackmun was wrong about abortion under Roman law (though he was)—he says that it was “constitutionally irrelevant.”
This judgment is extremely odd, not least because Justice Alito is not opposed to history as a general matter. In Justice Alito’s opinion, Henry de Bracton’s De Legibus et Consuetudinibus Angliae is cited or mentioned six times. Critics of Justice Alito’s draft opinion obsessed over his use of Bracton. Dana Milbank at the Washington Post, Anita Bernstein at Slate, and Heather Digby Parton at Salon—to take a few examples mostly at random—all expressed horror that Justice Alito might turn to Bracton for any guidance. And not just Bracton. The Fleta is cited once, but it’s not (to my mind) exceedingly likely that any of Justice Alito’s critics would know the Fleta from a load of coal. The Leges Henrici Primi are cited once, lest anyone think Justice Alito is stuck in the 13th century. Sir Edward Coke, Sir Matthew Hale, and Sir William Blackstone are all cited, too.
This “survey of history,” one assumes, is constitutionally relevant. To put it another way, the “eminent common-law authorities” must tell us something about what the Constitution means in light of the Republic’s history and tradition. The common-law authorities like Bracton provide important insight into the sorts of rights that are fundamental to our Nation’s “scheme of ordered liberty.” When Justice Alito, therefore, calls the “discussion of abortion in antiquity” in Roe “constitutionally irrelevant,” he must mean that it does not shed any light on what the Constitution means in light of our history and tradition, or the sorts of rights that are fundamental even if unmentioned.
Yet such a view reveals an incomplete understanding of sources like Bracton, the Fleta, and even Blackstone. Nowhere does Justice Alito suggest that Henry de Bracton sat down one fine day in the Thirteenth Century and simply made it all up. He had to get it from somewhere. We know what Bracton’s sources were. Among the sources Bracton used was the Italian jurist Azo, whose glosses on the Corpus Iuris became hugely influential. Azo was known to English jurists of Bracton’s time. Maitland tells us that Thomas of Marlborough, eventually abbot of Evesham, went to Bologna in 1205 and heard Azo lecture, returning to England with a high opinion of his mastery. Ernst Kantorowicz observed that “the ’fifties of the thirteenth century marked the high-tide of indeed most intense diplomatic and political interchanges between England and the kingdom of Sicily.”
Maitland’s Select Passages from the Works of Bracton and Azo show the extent of Bracton’s debt to Azo. Bracton also had recourse to the Corpus Iuris when he needed a point of Roman law to supply a lacuna in his plea rolls. However, the quality of his analysis has been debated. Bracton was, in Maitland’s judgment, “an able man,” but “a poor, an uninstructed Romanist.” But it is far from clear that Bracton was a total beginner. For example, as one might expect of a clergyman, he was conversant with other sources of the classical legal tradition, such as the canonists Tancred of Bologna and Bernard of Pavia. Indeed Travers Twiss notes that Bracton owed a significant debt to Bernard of Pavia’s Breviarium extravagantium in his treatment of accomplices to homicide, following a decretal of Pope Alexander III. And Bracton’s debt to the canonists is not limited to this one point: his whole treatment of the criminal law rests upon canonical foundations.
The trajectory from Justinian to Bracton (and then through the other “eminent common-law authorities”) has been recognized in the American tradition for over two centuries. In the famous property case Pierson v. Post (N.Y. 1805), the majority and the dissent identify that trajectory. Justice Daniel Tompkins, later James Monroe’s Vice President, joined by Chief Justice James Kent, writing for the majority acknowledges the progression from Justinian to Bracton on the vulpine question before New York’s highest court. Yves Casertano writing at Ius & Iustitium has discussed this aspect of this famous case. Justice Livingston, later to join the United States Supreme Court, did not quibble with the trajectory from the Roman law to the common law, but did think that the tradition of sportsmen ought to have controlled, not the opinions of the jurists.
Modern scholars like Richard Helmholz and Charles Donahue have labored mightily in recent decades to dispel the notion that English common law was somehow isolated from the broader currents of civil and canon law known as the ius commune. On the contrary, the “eminent common-law authorities” were for the most part working with a local specification of the ius commune. To suggest, as Justice Alito does, that antiquity is “constitutionally irrelevant” is to ignore history and imply that the common law developed in a vacuum. The common lawyers Justice Alito relies upon understood their debt to the Roman and canonical traditions.
To take one example, let us consider the passage relied upon by Justice Alito. “If there be some one, who has struck a pregnant woman, or has given her poison, whereby he has caused abortion, if the foetus be already formed and animated, and particularly if it be animated, he commits homicide.” 2 Henry de Bracton, De Legibus et Consuetudinibus Angliae 279 (Travers Twiss ed. 1879) (f.121). Now, consider this, from the Digest: “If it is proved that a woman has done violence to her womb to bring about an abortion, the provincial governor shall send her into exile.” (Dig. 48.8.8.) And again: “Those who administer an abortifacient or aphrodisiac draught, even if they do not do so with guilty intention, are still condemned, because the deed sets a bad example, if of lower rank to the mines, if of higher status to relegation to an island with the forfeiture of part of their property. But if for that reason a man or woman dies, they suffer the extreme penalty.” (Dig. 48.19.38.5.)
It is therefore safe to say that Bracton is in line with the Roman authorities collected in the Digest (Ulpian and Paul, if you’re playing along at home). And Bracton is in line with not just the Corpus Iuris. Just as Travers Twiss observed, Bracton seems to draw his criminal law from the canon law of his time. Innocent III, in the decretal Sicut ex dealing with a bizarre fact pattern, held that a cleric was guilty of homicide—and therefore irregular—if, while playing with his mistress, he caused her to abort an animated child. (X 5.12.20.) But another decretal, Si aliquis, held that procuring an abortion at any stage of a pregnancy was homicide (X 5.12.5.) Gratian himself, citing Augustine, put the emphasis on animation. (C. 32 q.2 c.7–10.) The principle that Bracton articulates is essentially the position of the civil and canonical tradition as it had developed into the middle of the Thirteenth Century.
The view informed by the classical and canonical traditions was not limited to Bracton, either. St. Thomas Aquinas shared this view: “ille qui percutit mulierem praegnantem dat operam rei illicitae. Et ideo si sequatur mors vel mulieris vel puerperii animati, non effugiet homicidii crimen, praecipue cum ex tali percussione in promptu sit quod mors sequatur”—“He that strikes a woman with child does something unlawful: wherefore if there results the death either of the woman or of the animated fetus, he will not be excused from homicide, especially seeing that death is the natural result of such a blow.” (ST II-II q.64 a.8 ad 2.) Aquinas had, of course, long had a grim view of abortion. (Cf. In IV Sent. d.31 exp. text.) In sum, Bracton, far from inventing his position out of whole cloth, stands squarely within the civil, canonical, and theological tradition of his time.
If Bracton is “constitutionally relevant,” it is impossible to see how his antecedents, such as Azo and Bernard of Pavia, to say nothing of the Corpus Iuris are not constitutionally relevant, except through a positivistic lopping-off of the English tradition from the broader currents of the ius commune. Justice Blackmun was a bad historian. Justice Alito is not much better, however, if he thinks that the writers of antiquity have no constitutional relevance. And not just the writers of antiquity: Bracton’s approach to abortion is evidently influenced by Gratian and the decretal tradition, including the decretal Sicut ex of Innocent III. An understanding, therefore, of the history and tradition of the Republic requires a consideration of the whole scope of common, civil, and canon law that was distilled in the Medieval English sources.
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It is worth celebrating the end of Roe and Casey. It is clear that those cases rested upon tendentious legal and historical claims directed not to saying what the law is, but imposing a preferred policy outcome. Dobbs ushers in a new constitutional moment, even as it restores the status quo ante. As Adrian Vermeule noted, Roe and Casey had momentous effects on numerous other aspects of the law (e.g., standing), since the entire constitutional edifice had to accommodate the holdings in those cases. Justice Alito’s opinion for the Court demonstrates masterfully that those decisions were wrong from the outset.
But it also rests, from its outset, on a tendentious legal and historical claim: that the sources of antiquity have no constitutional significance. It is manifest that a source upon which great weight is placed by Justice Alito—Henry de Bracton—looked to those sources of antiquity, and other sources besides. Bracton’s specific point on abortion is manifestly influenced not only by the treatment in the Digest but also the canonical and theological development through the Thirteenth Century. To say that those sources have no constitutional relevance is to say that Bracton’s opinion was offered in a vacuum—an absurdity.
A new constitutional moment should begin on solid foundations. Cutting off Henry de Bracton from the ius commune, which clearly served as the source of his reasoning particularly on the question of abortion, does not provide such a foundation.
Pat Smith
