I appear to have caused a bit of a stir in conservative circles recently when I asserted that Justice Hearn’s lead opinion finding a right to an abortion in the South Carolina state constitution was originalist. The general retort was that Justice Hearn engaged in results-oriented judicial activism, not originalism. But these two things are not necessarily contradictory–originalism as a method of interpretation does not guarantee that a judge is not using it merely as a means to a desired end. Whether Justice Hearn was doing exactly that is for her to say–I can only say that she did indeed use an originalist method to arrive at her conclusion.
Let’s first summarize the originalist method and see it in action in a famous case before turning to Justice Hearn’s opinion. Numerous variations of originalism have developed over the years, and I highly recommend Professor Lawrence Solum’s survey of what he calls the “family of originalist constitutional theories” in “What is Originalism? The Evolution of Contemporary Originalist Theory” for a summary of the major strands. Per Professor Solum, the most dominant modern strand has been “original public meaning” originalism, in which the public understanding of the text guides constitutional construction of rules based on that text.
In “The Original Meaning of the Recess Appointments Clause,” Professor Michael Rappaport provides a summary of the method used for discerning original meaning. Rappaport states that the goal is to “understand how knowledgeable individuals would have understood” the relevant clause at the time it was drafted and ratified. First, “the most important factor is the text” of the relevant clause, which should be understood with the meaning at the time of its drafting. “If the text of the Clause is consistent with only one interpretation, then that will be its proper meaning,” unless absurdity results. But if there is more than one interpretation, “ one must look to purpose, structure, and history to help clarify the ambiguity.” One should also look to the “natural use of the language” to determine if one of the contested meanings is more natural or common, in which case only a strong argument based on purpose, structure and history would overcome it. Rappaport first considers purpose, noting that it is permissible evidence for interpretation but also dangerous “because it is easy for interpreters to focus on one purpose to the exclusion of others without any strong arguments for doing so.” One can also look to historical evidence of the drafters’ values and the structure of the overall constitutional design that potentially informed the drafting of particular texts. Finally, “early constitutional interpretations by government officials or prominent commentators” can also serve as “evidence of the original meaning of the provisions, because early interpreters would have had considerable knowledge of contemporary word meanings, societal values, and interpretive techniques.”
To summarize: text, purpose, historical context, structure, and subsequent early interpretations can all serve as evidence for defining the original public meaning of a constitutional clause.
Professor Solum in his article linked above states that “it is hard to imagine finding a clearer example of original public meaning originalism in an actual judicial decision” than Justice Scalia’s majority opinion in District of Columbia v. Heller concerning the Second Amendment. Setting aside (as Solum himself does) whether Scalia’s individual arguments at each step in his logic are convincing, Solum states “the important feature of Heller is methodological” in its adoption of original public meaning originalist analysis of the Second Amendment. Part II.A of Heller is a deep textualist analysis of the operative clause and then the prefatory clause, based on parallel usages of phrases in other constitutional clauses, the historical context and meaning of words and phrases at the time, dictionary evidence, the historical evidence of other clauses the Framers considered, and other contextual material. Part II.B then turns to state constitutions that incorporated clauses similar to the Second Amendment, together with early state court interpretations of those clauses. Scalia responds to Justice Stevens’ analysis of the historical record in Part II.C, before turning in Part II.D to fulsome treatment of judicial commentary, case law, and legislation concerning the Second Amendment up through the 19th century. On the basis of this analysis, Justice Scalia finds that the Second Amendment protects an individual right to keep and bear arms.
Scalia’s methodology in Heller, in other words, follows the method as described by Rappaport: Begin with the text to discern potential meanings, then select the natural meaning as best supported by the purpose of the drafters, the historical context, the structure of the document, and the post-ratification evidence of early interpreters and commentators.
Now let’s turn to Justice Hearn’s lead opinion in Planned Parenthood South Atlantic v. South Carolina and see how it applies this methodology of original public meaning to Article I, Section 10 of the South Carolina state constitution. The article states, “The right of the people to be secure in their persons, houses, papers, and effects against unreasonable search and seizures and unreasonable invasions of privacy shall not be violated….” Justice Hearn begins with the obvious: Unlike the U.S. Constitution, the South Carolina constitution has an explicit right of the people against to be secure “against unreasonable violations of privacy.” The only question, then, is whether an act prohibiting or severely restricting “a woman’s decision to terminate a pregnancy” constitutes an unreasonable invasion of that privacy. Justice Hearn first states that the text itself is clear: “privacy” is not limited to the context of searches and seizures. Holding otherwise, she states, would render the parallel Search and Seizure Clause in the text a mere redundancy and “inconsequential.” (The rule against surplusage or redundancy is a common canon of construction, of the kind often employed by Justice Scalia and other originalists.) Furthermore, Justice Hearn states that the phrase unreasonable invasion of privacy “while broad, is not ambiguous.” Begin with the textual analysis and considering the words in their context of the document–that’s step one for originalist methodology.
Justice Hearn then drills down on the specific meaning of “privacy” at the time the clause was drafted and added to the South Carolina constitution in 1971. Like an originalist summoning Blackstone, she finds that the modern legal concept of “privacy” began with Louis Brandeis’ famous 1890 article “The Right to Privacy” and the idea of “the right to be let alone” from government or public interference. She notes that from the beginning, the legal concept of privacy extended far beyond the context of criminal searches and seizures to encompass civil torts of invasion of privacy. She cites the 1942 Supreme Court case Skinner v. Oklahoma which protected “the right to procreate” and invalidated compulsory sterilization laws on the basis of procreation being “a basic liberty” of free men. And finally she cites the 1965 case Griswold v. Connecticut, which invalidated a state ban on the use of contraceptives, and its extension in 1972 in Eisenstadt v. Baird, where the Supreme Court held “[i]f the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”
So Justice Hearn concludes that by the time the South Carolina drafting committee drafted article I, Section 10 to the constitution in 1971, the meaning of privacy was well developed and understood to include a right to medical decision-making and bodily autonomy of the kind that (she claims) is implicated by abortion. She states this meaning was at least brought before the drafters of the clause, because Griswold was mentioned in an article presented to the drafters. She then downplays other evidence that focused privacy rights in the search and seizure context by stating,“[c]ognizant of the ongoing developments and extensions of privacy law into areas such as marriage and intimacy, the authors nevertheless chose broad language, which we cannot now simply ignore by looking to discrete references to data security in the Committee notes.” To support this conclusion, she cites Heller, that originalist case par excellence, in which Scalia stated, “It is always perilous to derive the meaning of an adopted provision from another provision deleted in the drafting process.” It also calls to mind Professor Rappaport’s caution against the danger of using evidence of purpose, “because it is easy for interpreters to focus on one purpose to the exclusion of others without any strong arguments for doing so.”
At this point, Justice Hearn responds to the dissents in some detail. Justice Kittredge’s dissent relies heavily on the notes of the drafting committee to assert that the privacy clause should be read within the context of the parallel search and seizure clause. Hearn responds by critiquing the composition of the drafting committee that wrote the clause, and it is this section that has provoked the cry that Hearn is not originalist. I’ll agree that this is not originalist and certainly supports the thought that Hearn is engaged in results-oriented judging. But so what? The point that Hearn gets to, and which she has already stated within an originalist framework, is that “in the final analysis, we find the notes of the [drafting committee] irrelevant to the question before us today.” And that is the same result that both Scalia and Rappaport point to–drafting notes may indicate original intent, but original intent is not the same as original public meaning of the enacted text. Hearn may be tipping her hand with this response to the dissent, but it is ultimately tangential to her analysis of the original public meaning that stands on its own without this aside.
Justice Hearn then turns to subsequent South Carolina case law interpreting the privacy clause, which clearly found privacy rights in maintaining confidential mental health records and compulsory medications for prisoners. While they concern criminals, these cases addressed privacy rights outside the search and seizure context. Finally, Justice Hearn turns to other state constitutions that have express rights to privacy, and she finds that in each instance that a court has considered the question (in Alaska, Florida, Minnesota, Montana, and Tennessee), the state supreme court found that such privacy clauses encompassed the right to an abortion. (I note that Tennessee citizens subsequently voted for a constitutional amendment that expressly removed the right to an abortion from the state constitution.) This is the last step of an originalist analysis as described by Rappaport and implemented by Heller–consideration of the precedents of earlier interpreters of the privacy clause both within South Carolina and in other states.
On this basis, Justice Hearn concludes that the prohibition against “unreasonable invasions of privacy” in the South Carolina state constitution encompasses “the decision whether to bear or beget a child” (quoting Eisenstadt). The remainder of the opinion concerns whether the Fetal Heartbeat Bill in question violates that right, and she finds that it does.
Thus, Justice Hearn’s methodology is unquestionably originalist. She begins with the text, considers the meaning of the clause as it would have been publicly understood by “knowledgeable individuals” concerning the meaning of “privacy” in 1971, analyzes it within the structure of related clauses, and confirms her conclusion by reviewing subsequent commentary and case law in both South Carolina and in sister states. This is what Rappaport proposes and how Justice Scalia proceeds in Heller.
Now, a reader may think that Justice Hearn is selective in her history, as progressives accused Scalia of being in Heller. A reader may also find Justice Hearn’s analysis unpersuasive, perhaps in that she relies on the legal conception of privacy and not the “common” meaning of that word. And finally, a reader could with some justification assert that Justice Hearn had the conclusion in mind first rather than letting the analysis take her there. But that doesn’t change the glaring fact that pages 8-18 of the Planned Parenthood opinion use originalist methodology to support that conclusion. Moreover, it should not be surprising that originalist methodology could be used to support finding a right to an abortion in a 1971 revision to expressly include a right to privacy–the legal concept of privacy had been developing in that direction for some time. That’s the problem for conservatives when the time of ratification shifts from the 18th and 19th centuries to the second half of the 20th century, when most of these privacy constitutional clauses were enacted.
If conservatives don’t like this conclusion, perhaps they should consider finding an alternative theory of jurisprudence.