When it comes to our constitutional rights, it seems the two most important objectives on the Republican agenda were eliminating the right to abortion and restricting the power of the government to enact gun safety legislation.
The Supreme Court accomplished both in its recent Dobbs and Bruen decisions at the end of June. Defenders say the court was not sitting as a partisan unelected legislature pursuing a political agenda. They say the decisions had a principled jurisprudential basis of interpreting the Constitution in accordance with the framers’ understanding of its text, a theory they call “originalism.” Yet, that explanation does not hold water.
In the first place, if the Dobbs and Bruen majority opinions did not have an agenda, why did they reach out to decide important constitutional questions they did not have to answer to resolve the disputes in the specific cases before them?
In Dobbs, Chief Justice John Roberts called out the other five Republican-appointed justices for violating the established practice “not to ‘formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.’” The case centered on a Mississippi anti-abortion law that prohibited abortions after 15 weeks. The law did not say anything about earlier abortions. It was therefore unnecessary for the court to address whether the constitution protected such earlier abortions.
In Bruen, a New York based NRA-affiliate challenged only New York’s regulation of the concealed carry of a firearm. But rather than limit themselves to that question, the six member majority, including Roberts, also considered New York’s regulation of the open carry of a firearm, and found New York’s law was unconstitutional.
Second, the majority opinion in Bruen did not follow the text of the Constitution although they proclaimed to do just that on the basis of individual right. In reality, the Second Amendment says only, “A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Justice Clarence Thomas could not find room in his 63-page decision even to quote the first half of that sentence, presumably because it inconveniently makes clear that the purpose of the Second Amendment is actually to enable the states to have well-regulated militias to protect their security. No part of the sentence creates an individual right to self-defense or to carry a concealed firearm.
As for the Fourteenth Amendment, Thomas’s 63-page opinion leaves out the entire two-sentence text. Those sentences, too, say nothing about a right to self-defense or concealed carry. The first sentence defines who are citizens of the United States. The second sentence says, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” In Dobbs, the court said the reference to “liberty” does not include the right to abortion. How then could the same justices, just the day before, say it grants a right to carry a concealed firearm for self-defense?
Third, the Dobbs and Bruen majorities say they look to “historical tradition” to reveal the understanding of the framers of the constitution. But who is to determine what are “historical traditions” and whether they are worthy of constitutional enshrinement? The very same judges who now accuse the Roe and Casey judges of “usurping” their authority to find the liberty clause of the constitution grants the right to abortion? What aspect of “originalism” permits the current court to ignore previously recognized traditions? In 2008, the Heller court, which included Roberts, Thomas and Justice Samuel Alito, found there was a longstanding historical tradition of prohibiting the concealed carry of a firearm. But in 2022, in Bruen, the same Justices, together with three new appointees, struck down New York’s restrictions on concealed carry.
For 50 years the court, in numerous decisions, recognized a right to abortion. But in 2022, Dobbs overruled them all, even though no new material facts or historical traditions relating to that right were presented. Ironically, Alito’s Dobbs opinion cites former Justice Byron White for support, but White could have been referring to the Dobbs and Bruen majorities when he so eloquently explained that if “great constitutional questions” are determined “according to the mere opinion of those who temporarily fill [the court’s] bench,” without regard for precedent, “our Constitution will, in my judgment, be bereft of value and become a most dangerous instrument to the rights and liberties of the people.”
Fourth, Alito and Justice Brett Kavanaugh went out of their way in Dobbs to say their elimination of the constitutional right to abortion, which had been grounded on the liberty clause of the Fourteenth Amendment, does not “cast doubt on” any other right grounded on that clause. But if the court is following a non-political “originalism,” what part of that theory allows the court to read the liberty clause and apply “historical tradition” one way to eliminate the right to abortion and a different way for everything else?
Finally, the Dobbs and Bruen majority opinions do not provide any basis for their premise that the framers wanted them to use the majorities’ view of “originalism” to interpret the Constitution. No less a framer than Thomas Jefferson explained, in words quoted on the southeast portico of the Jefferson Memorial in Washington, D.C. that “laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners of opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as a civilized society to remain ever under the regimen of their barbarous ancestors.”
Retired Justice Anthony Kennedy was consistent with those wise words in his opinion upholding the right to same-sex marriage, “The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning,” adding “[t]he identification and protection of fundamental rights is an enduring part of the judicial duty to interpret the Constitution.” That is true originalism.
Had the court followed those admonitions with its latest rulings, it would and should have reached the opposite conclusions in Dobbs and Bruen. Any notion that its inconsistent, apparently result-oriented decisions, and the devastating effects they will have on this country, are somehow required by or carry out the original understanding of the constitution is untenable.
Michael J. Dell was a founding director of Americans for Firearm Injury Reduction in Medicine. He co-authored an amicus brief for the American Medical Association, the Medical Society of the State of New York, the American Academy of Pediatrics and the American Academy of Child and Adolescent Psychiatry in support of New York’s concealed carry law. He has also represented women who sought to protect their constitutional right to abortion.