The oral arguments in Dobbs v. Jackson Women’s Health have been held and the cause taken under advisement. If the past practice of the Supreme Court is any indication, one morning in late June 2022, a little after 10 AM, the Supreme Court will issue a decision. Pro-life advocates and abortion supporters have been poring over the tea leaves from the oral argument pretty much nonstop since Chief Justice Roberts gaveled them to a close on December 1. And soon, one suspects, the incessant drip of leaks from One First Street will begin—if it has not begun already.
Conservative commentators have decided that originalism itself hangs in the balance. If the Supreme Court does not take the opportunity presented by Dobbs to overrule Roe and Casey, that’s the end of originalism. Ed Whelan, the reliable fixture of the judicial wing of Conservatism, Inc., thinks that there will be much to answer for if that happens. And Joel Alicea, a law professor at Catholic University of America, has gone so far as to say that the Supreme Court’s decision in Dobbs is all that stands between originalism and a future dominated by Adrian Vermeule.
Jacob Neu has already explained with admirable clarity that the positions taken at oral arguments in Dobbs represent a certain failure of imagination. Despite the serious work done by John Finnis, Robert P. George, and Josh Craddock (and others) to provide unanswerable arguments in favor of personhood for the child en ventre sa mere (as Blackstone would put it) via the Fourteenth Amendment, there seems to be no interest in that argument. Justice Brett Kavanaugh was at pains to obtain assurance from Mississippi Solicitor General Scott Stewart that Mississippi did not believe that the Supreme Court could or should forbid abortion or order the states to forbid abortion. This was particularly strange since the personhood argument does not require Justice Kavanaugh to abandon his originalist commitments. Quite the contrary. To be sure, there is a version of the personhood argument that is not really originalist—the German Bundesverfassungsgericht made such an argument in 1975 (BVerfGE 39,1). However, Finnis, George, and Craddock have made an argument in the context of Dobbs that can be characterized very fairly as originalist. They simply want the Court to adopt the original understanding of the Fourteenth Amendment.
Neu has also explained that no one seemed—seemed, I emphasize, having no particular knowledge—all that interested in Chief Justice John Roberts’s (apparently) proffered compromise of upholding Mississippi’s law without overturning Roe and Casey. The sense, shared by conservatives and liberals alike, is that Roe and Casey have to go in order to uphold the Mississippi law. And the only meaningful basis to do so, it seems, is a very standard originalist argument—notwithstanding the valiant efforts of Finnis, George, Craddock, and others to expand the horizons of originalism with their Fourteenth Amendment personhood argument. Some have gone so far as to suggest that this basis is the only principled basis available. (More on that in a moment.)
One understands, therefore, why the leading (and not-so-leading) voices of Originalism Inc. have decided that as Dobbs goes, so goes originalism. All the eggs are in one basket. But the representatives of originalism are not content to accept gratefully the reprieve should it be offered. No, an originalist decision in Dobbs has expanded to a rebuke of the critics of originalism. Alicea even goes so far as to say that overturning Roe and Casey would deflate the moral critics of originalism because “originalism will have been the means of achieving the critics’ most earnestly sought moral goal.” I am a little surprised that a professor—even a professor of law—at a Catholic university would seem so unaware of the moral teaching of the Church. Whether it is St. Paul VI in Humanae vitae or St. John Paul II in Veritatis splendor, the Church has in recent decades been committed to the principle that immoral means cannot be justified by good ends. We can set aside the theological debate for a moment, though.
The fact of the matter is that I am not so sure that the moral critics of originalism have much to worry about even if the Supreme Court overturns Roe and Casey on standard originalist grounds in Dobbs. Indeed, I think that one of the most storied events in America’s political history, the Lincoln-Douglas Debates of 1858, shows that the moral crisis of abortion will not really be resolved by an originalist decision. Indeed, the moral crisis of abortion may well be exacerbated by an originalist decision, given the likely scope of such a decision. So far from closing the door on the classical legal tradition, on the common good, an originalist decision in Dobbs will demonstrate precisely why the classical legal tradition is necessary. Indeed, an originalist decision in Dobbs will, so far from answering in a definitive way the moral critique of originalism, confirm that critique once and for all.
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Let us first agree that striking down Roe and Casey will return the regulation of abortion to the states. Notre Dame law professor Rick Garnett has argued that the only principled, only “stable” ground to emerge from the Dobbs oral arguments is that the Constitution is silent and neutral on abortion. The Constitution, per Garnett, “leaves the issue for the people and their elected representatives.” Gerard V. Bradley, another Notre Dame law professor, writing at the National Catholic Register, has outlined in stark terms what that will mean. Many states have bans on abortion on the books, just waiting for Roe and Casey to fall. Other states will probably move pretty quickly to ban abortion. However, other states, it may be safely supposed, do not have abortion bans and will not have abortion bans at any time in the foreseeable future. Kansas and Alabama can do what they want, but so too can California and New York. On what Professor Garnett has called the only principled constitutional basis, instead of one or two battlegrounds—the Supreme Court and Congress or the White House, depending—the political struggle will spread to every state house and every state supreme court. This is not a cheerful vision of a pro-life future. Professor Bradley puts it aptly when he says: “Conservative ‘success’ in Dobbs would therefore not mean the end of abortion, or even the beginning of the end of it. Dobbs would instead be the starting gun of a whole new phase of the political struggle over abortion.”
With that in mind, the comparison to the Lincoln-Douglas Debates becomes, I think, obvious. (And I am not the first to think so.) The debates took place in the context of the 1858 election to the United States Senate. Stephen Douglas was running for reelection against Abraham Lincoln, a railroad lawyer who had served one term in the House some years before. One of the most important background issues in the campaign was Stephen Douglas’s record on slavery. During his time in the Senate, Douglas, known as the “Little Giant” for his short stature and long influence, had been instrumental in several compromises regarding slavery, especially slavery in the territories. Douglas’s work on the Compromise of 1850 and the 1854 Kansas-Nebraska Act had been victories for Douglas’s notion of popular sovereignty. Setting aside earlier doctrines like the Missouri Compromise, Douglas had brought about the admission of states to the Union and the organization of territories with the condition that the voters in those states and territories could decide for themselves whether to legalize slavery.
Lincoln attacked Douglas’s record on fundamentally moral grounds. Douglas’s popular sovereignty, Lincoln argued, ignored the moral dimension of slavery. Here one can see the parallel to the moral critique of originalism. In the debate at Quincy, Illinois, on October 13, Lincoln made his case as clearly as he could:
I suggest that the difference of opinion, reduced to its lowest terms, is no other than the difference between the men who think slavery a wrong and those who do not think it wrong. The Republican party think it wrong—we think it is a moral, a social and a political wrong. We think it as a wrong not confining itself merely to the persons or the States where it exists, but that it is a wrong in its tendency, to say the least, that extends itself to the existence of the whole nation. Because we think it wrong, we propose a course of policy that shall deal with it as a wrong. We deal with it as with any other wrong, in so far as we can prevent its growing any larger, and so deal with it that in the run of time there may be some promise of an end to it.
This is certainly shrewd rhetoric on Lincoln’s part and it set up his most effective passage in the whole debate. But, shrewd rhetoric or not, it cannot be denied that Lincoln was simply correct. Slavery in the United States in 1858 was an appalling wrong—morally, socially, and politically.
Yet, according to Lincoln, Stephen Douglas did not much care whether a territory (or a state) allowed slavery or not, just as long as the territory (or state) was allowed to decide. In that most effective passage in the whole debate, Lincoln brought his moral point home:
So I say again, that in regard to the arguments that are made, when Judge Douglas says he “don’t care whether slavery is voted up or voted down,” whether he means that as an individual expression of sentiment, or only as a sort of statement of his views on national policy, it is alike true to say that he can thus argue logically if he don’t see any thing wrong in it; but he cannot say so logically if he admits that slavery is wrong. He cannot say that he would as soon see a wrong voted up as voted down. When Judge Douglas says that whoever or whatever community wants slaves, they have a right to have them, he is perfectly logical if there is nothing wrong in the institution; but if you admit that it is wrong, he cannot logically say that any body has a right to do wrong.
Either Douglas is confused or he does not think slavery is wrong. This is a masterful political performance, to be sure. With this line of attack, Lincoln painted Douglas into a corner that he could not—indeed, did not—easily escape from.
Of course, one should emphasize here that we are talking about intrinsic evils, like abortion or slavery. A law authorizing or commanding such an evil would be no law at all (ST I-II q.96 a.4). There is an interesting argument about the nature of jurisdiction and legal wrongs: the praetor, for example, was said to render jus even when he made a wrongful decree (cf. Dig. 1.1.11). But that argument must wait for another day. I take it for granted that slavery in the United States in 1858 was intrinsically evil, just as I take it for granted that abortion is intrinsically evil. Certainly, as St. John Paul tells us, circumstances might reduce culpability in a concrete case, but neither slavery nor abortion may be made good.
If you accepted Lincoln’s premise—that slavery in the United States in 1858 was an appalling wrong in every dimension—you cannot help but be swept along by the force of his argument. How can someone say he does not care whether a territory or a state approves slavery? Human actions, insofar as as they proceed from deliberate reason, are either good or evil. Thomas Aquinas tells us, “necesse est omnem actum hominis a deliberativa ratione procedentem, in individuo consideratum, bonum esse vel malum”—“every human action that proceeds from deliberate reason, if it be considered in the individual, must be good or bad” (ST I-II q.18 a.9 co.). And it is accordance (or not) with reason that makes an act good or bad (ST I-II q.18 a.5 co.). Lincoln, who probably was not too familiar with Thomas Aquinas, understood this point; if something is evil, then it is evil. A vote cannot make an irrational act rational. Douglas’s popular sovereignty was a moral mirage.
Stephen Sachs, Antonin Scalia Professor of Law in Harvard University, has responded to Ius & Iustitium’s editorial yesterday, arguing, among other things, that “The argument for positivism isn’t that might makes right. The argument is that we can best understand not only our actual moral obligations, but also those ‘semblances of morality’ on which human societies insist, by keeping the distinctions between them straight in our minds—by respecting the difference between mores and morals, between the artificial ‘must’ of a legal rule and the real ‘must’ of an ethical one.” This is, of course, no less a critique of Lincoln’s moral case than Ius & Iustitium’s moral case. Lincoln’s attack on Douglas, Sachs might say, conflates the natural law with the law of the United States in 1858.
This has nothing to do with the classical legal tradition and is, however interesting it might seem to Professor Sachs, altogether beside the point. On the classical account, the purpose of law is to make men virtuous (Ethic. II.1, 1103b1-5; In II Ethic. L.1 no. 251; ST I-II q.90 a.3 ad 2). Virtue requires training, Aquinas tells us, and some men can take their training from example and exhortation, while some men require sterner measures—they require laws (ST I-II q.95 a.1 co.). There are all sorts of things you should and should not do when framing laws for a given community (ST I-II qq.96-97). But these are prudential considerations that do not amount to a cleavage between law and morality. Sachs’s argument is a valiant defense of Justice Scalia’s positivism, no doubt, but this argument finds basically no grounding in the classical legal tradition. More than this, we see that Lincoln spoke from the position of the classical legal tradition.
Douglas walked right into the trap Lincoln laid for him, setting forth an argument that would not be out of place in the originalist discourse over Dobbs, Roe, and Casey. Despite Lincoln’s aggressive argument, Douglas attempted to sidestep the moral question, returning to the firmer ground of the Constitution and his old arguments in favor of popular sovereignty:
I am now speaking of rights under the Constitution, and not of moral or religious rights. I do not discuss the morals of the people of Missouri, but let them settle that matter for themselves. I hold that the people of the slaveholding States are civilized men as well as ourselves; that they bear consciences as well as we, and that they are accountable to God and their posterity, and not to us. It is for them to decide, therefore, the moral and religious right of the slavery question for themselves within their own limits. I assert that they had as much right under the Constitution to adopt the system of policy which they have as we had to adopt ours. So it is with every other State in this Union. Let each State stand firmly by that great Constitutional right, let each State mind its own business and let its neighbors alone, and there will be no trouble on this question.
More than this, Douglas argued, the question of slavery was a distraction from the work of the United States:
Stand by that great principle, and we can go on as we have done, increasing in wealth, in population, in power, and in all the elements of greatness, until we shall be the admiration and terror of the world. We can go on and enlarge as our population increase, require more room, until we make this continent one ocean-bound republic. Under that principle the United States can perform that great mission, that destiny, which Providence has marked out for us. Under that principle we can receive with entire safety that stream of intelligence which is constantly flowing from the Old World to the New, filling up our prairies, clearing our wildernesses and building cities, towns, railroads and other internal improvements, and thus make this the asylum of the oppressed of the whole earth. We have this great mission to perform, and it can only be performed by adhering faithfully to that principle of self-government on which our institutions were all established. I repeat that the principle is the right of each State, each Territory, to decide this slavery question for itself, to have slavery or not, as it chooses, and it does not become Mr. Lincoln, or anybody else, to tell the people of Kentucky that they have no consciences, that they are living in a state of iniquity, and that they are cherishing an institution to their bosoms in violation of the law of God. Better for him to adopt the doctrine of “judge not lest ye shall be judged.”
The moral question, Douglas asserted, proving himself every bit the great orator of his generation, could be entirely separated from the peace and development of the Republic. Indeed, Douglas even seems to argue that the moral question must be separated from the peace and development of the Republic.
The Constitution, Douglas argued, allowed each state (and territory) to determine for itself the burning moral question of the day. The voters of those states and territories were civilized men, as Douglas puts it, with consciences. The Constitution allowed them to determine for themselves, free from Abraham Lincoln’s interference, the moral, political, and social dimensions of the question of slavery. Some states had approved slavery and some states had rejected it. This freedom of choice—this freedom of argument and deliberation in each of the states—is baked into the Constitution according to Douglas.
One can have it all, too, according to Douglas. The states and territories, if they respect each other’s right to decide the slavery question for themselves, can have domestic tranquility. More than this, they can have material prosperity—if they turn away from flyspecking each other over moral questions and turn to the real business of the Republic. Douglas seems to go farther than simply urging his audience to turn away from the moral debates and focus on more practical concerns. He seems even to argue that the only way such practical development could take place is if they followed the constitutional mandate of popular sovereignty and let each state decide these moral questions for themselves.
But, of course, Douglas was wrong. It was impossible for anyone to set aside the moral question and focus on the practical development of the Republic. In fact, the moral question of slavery became ever more central to the political life of the Republic, ultimately becoming the only significant issue. When Abraham Lincoln was elected president—just a couple short years after the Lincoln-Douglas Debates—the slave states decided to secede from the Union, rather than see what Lincoln had in mind for them. The ensuing conflict soaked the nation in blood and caused untold suffering for millions of Americans. So much for popular sovereignty.
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Originalists seek to resurrect Stephen Douglas’s solution to the moral crisis of slavery in the context of the moral crisis of abortion. The Supreme Court will, they hope, strike down Roe and Casey on the grounds that the federal Constitution does not enshrine a right to abortion. The question must be, therefore, decided by the states. If California and New York wish to allow abortion, that is their business. We would be speaking not of moral questions, but of rights under the Constitution. We may say with Stephen Douglas: “I assert that they had as much right under the Constitution to adopt the system of policy which they have as we had to adopt ours. So it is with every other State in this Union. Let each State stand firmly by that great Constitutional right, let each State mind its own business and let its neighbors alone, and there will be no trouble on this question.”
I want to be clear. I am not the first to notice this connection. Josh Craddock, in a March 2021 response to Ed Whelan at First Things, concluded by observing that the states-rights approach to Roe was “an echo” of Stephen Douglas’s popular sovereignty. He returned to the point more recently in a Wall Street Journal editorial. Yet in pieces like Alicea’s we see the argument that originalism would have a conclusive answer to the moral criticism of Adrian Vermeule and others by returning abortion to the states. It is therefore necessary to return to the distillation of the great moral crisis of the 19th century.
Originalism’s answer to the moral crisis of 2021 is a sort of “Little Giant Constitutionalism,” to be opposed to the classical legal tradition or “common good constitutionalism.” Overturning Roe and Casey will simply return to the good old days of popular sovereignty. California and New York can allow abortion, they can even fund it with taxpayer money, as Professor Bradley warns, but Kansas and Alabama can ban abortion outright. This is the vision, we are told, just as Douglas’s audience was told in 1858, of the Constitution. If everyone leaves each other alone, we can focus on what really matters: the material prosperity and development of the United States.
What Abraham Lincoln understood—and what Stephen Douglas did not understand—is that this is not an answer to a moral crisis. Whether you call it originalism or popular sovereignty or any other name, it does not answer Lincoln’s fundamental objection, the fundamental objection from the classical legal tradition: no one has a right to do a wrong. And the argument, whether it is implicit or explicit, that the Constitution permits each state to decide for itself this fundamental question of right and wrong is, as Lincoln sharply demonstrated, morally incoherent. Originalism may well, some day on some issue, be able to answer the moral critique from the standpoint the classical legal tradition. (I doubt it, but I’ll be generous.) But not with a decision in Dobbs.
Pat Smith
