On the eve of what may well be its biggest victory, there is a palpable sense of anxiety within the conservative legal movement. This is not merely anxiety that they might not win the actual case. It is an anxiety that if they do not, they will cease to matter and will be replaced by a newer (yet older) jurisprudence: This jurisprudence is, of course, simply the classical legal tradition, or “common good constitutionalism” as it is now called. Joel Alicea recently observed, a defeat here would be “crisis inducing” for originalism. A wag of Marxist sensibilities might say that a specter is haunting originalism—the specter of the classical legal tradition, of the common good. But only one power of originalism can exorcise it: the power at One First Street. The cause of the originalists’ anxiety is all too clear.
This is their fear if the conservative justices do not deliver in Dobbs. But what about the other outcomes? What happens if Dobbs comes down as a resounding endorsement for the main-line view of the conservative legal movement—that is, what if Dobbs explicitly overturns Roe and declares that as the constitution is silent on the question of abortion it is therefore a matter for the states? Make no mistake—Roe and Casey are disastrous decisions that should be overturned immediately. And it may be, given the choice of options available today, that a straight overturning of Roe and Casey is as good a victory as we can get. Such a reversal would save many lives which would otherwise be lost to abortion, and would be a historic victory well worth celebrating. Nevertheless, a victory in Dobbs on such terms, however much it is a consummation devoutly to be wished, will not protect originalism from its common good critics, and this for two reasons: one pragmatic and one principled.
Before turning to the pragmatic reason it is worth noting that the limit of the imaginable victory in Dobbs is simply returning the matter to the states. As has been pointed out on this site, the arguments (which could be framed in originalist or non-originalist terms) from the 14th amendment that abortion is unconstitutional, so ably made by Josh Craddock and John Finnis among others, seem to to be off the table—at least in this round. The victory we are talking about then, is quite a limited one.
Pragmatically, an originalist victory in Dobbs will limit full victory in ending abortion in two ways. First, it will result in a patchwork quilt of state laws. After the 2021 midterm elections, 13 states have all-Democratic legislatures with a Democratic governor—but these include California and New York and represent about 33% of the national population. Such states would likely move to increase abortion access. Another 12 states (representing about 25% of the national population) have divided government. And finally, even among all-Republican states, some have not enacted bans on abortion that would automatically enter into effect upon an overruling of Roe. In effect, we will be in a regime in which an unborn child in California will be at risk of its life until birth, while one in Texas will be treated as a human being and afforded equal protection. Such a confused state-by-state situation—and the likely result of women attempting to travel from ban states to abortion states—begs for a uniform national solution imposed by Congress. And, what’s worse, there is nothing preventing this federal legislation from making, or attempting to make, Roe the law of the land using one of the many jurisdictional hooks available. Second, directing the battle into 50 state legislatures may make the fetal personhood argument harder to make and will certainly create an unstable equilibrium reminiscent of the decades before the Civil War, where slave states and free states grew further and further apart over fundamentally incompatible understandings of life and liberty. Conspicuous “neutrality,” like Stephen Douglas’ concept of popular sovereignty, cannot itself resolve the matter, as will be discussed in a forthcoming post here.
Which brings us to the heart of the problem. The principled reason that a victory in Dobbs will not save originalism is not merely that originalism has not produced some laundry list of results, but goes much deeper (as Conor Casey has aptly observed on Twitter). Originalism is incompatible with any morality beyond “might makes right.”
As a preliminary note, the classical tradition does not hold that law is simply equity, that is, that judges should always simply do what seems best to them unconstrained by the text of the law. To the contrary, it gives due reverence to the text of the law and holds that law will constrain judicial actors and prevent them from applying their own all-things-considered preferences. St Thomas, in answering the objection to why laws are necessary when decisions could just be entrusted to judges, cites Aristotle in reply, concluding that “since then the animated justice of the judge is not found in every man, and since it can be deflected, therefore it was necessary, whenever possible, for the law to determine how to judge, and for very few matters to be left to the decision of men” (ST I-II q.95 a.1 ad 2). Therefore, it is only when a positive law conflicts with the natural law itself, and not with mere judicial preference, that the positive law be trumped. This is not the judicial restraint of those who would leave all morality to the voting booths, but this is a large topic for another occasion.
But originalism does not merely hold that judges should attend to the text of the law. Rather, it reduces to the claim that the law just is the text, and nothing more. This positivist view of law the classical legal tradition very much does reject. Unfortunately, it is this that the mainstream conservative legal movement has tied itself to. (Alicea distinguishes instrumentalist and non-instrumentalist originalism). Though more could be said about the differences between them, both of these versions are ultimately susceptible to the same critique. Indeed, one almost gets the sense reading pieces from people like Josh Blackman, that the conservative legal movement is more concerned with vindicating its jurisprudential theories than with actually winning on substantive issues. (They are, as they never tire of reminding anyone who will listen, a principled bunch.) The positivist coreview of originalism is that the text alone is law; whatever is enacted by the sovereign, no matter how repugnant to morality, no matter how discordant with human nature, is the law that the court must uphold. To determine what the will of the sovereign was, the judge must look only to the enacted text as it would be understood at the time of its enactment. This view ends up with a “might makes right” morality, and an impoverished, enfeebled notion of law. It is the positivist version of originalism that allows indifference to justice to wear the guise of being “scrupulously neutral on the question of abortion.” It must be rejected root and branch.
It may be enough for the present purposes to catalogue a few of the differences between the positivists and the classical view. (A more detailed discussion of positivism can be found here.) Law on the classical view is an act of reason; law on the positivist view is an act of the will of the sovereign, limited only by his power to enforce it. Law on the classical view must be for the common good of the whole society—that is, it must be for a good which is not diminished when shared. For the state, this good will be peace itself, along with justice, and abundance. On the positivist view, law has no necessary connection to the common good, and indeed the very existence of any good beyond an individual good or their aggregate is questioned. Thus (at least for the utilitarians who invented modern legal positivism), law at best can only be about vindicating individual rights and goods, or about protecting aggregations of individual rights and goods. Indeed, taken to its logical extreme, morality itself will be dissolved under positivism, and will simply become whatever value the voters (or the sovereign) choose.
Should Roe not be overturned, originalism will have been a colossal failure. To this extent we and our originalist critics agree. But should Dobbs overturn Roe and Casey, originalism is not thereby vindicated. On the level of principle, originalism, or at least the version that has thus far dominated the conservative legal landscape, will remain unjustified and in the words of professor Hadley Arkes “a morally empty jurisprudence.” On a pragmatic level, at the very least, every blue state is likely to enact abortion on demand. Our civilization will have then reached the level Carthage might have—if only its princes had been wise enough to allow its provinces to decide themselves in what way children were to be butchered for their gods.
Ius & Iustitium
