In the Dobbs majority opinion, the analysis of “liberty” in the Due Process Clause of the 14th Amendment does not even purport to examine the original public meaning of that word in the context of the phrase, “[N]or shall any State deprive any person of … liberty … without due process of law.” But even if one accepts the methodology of Justice Scalia’s original-public-meaning originalism, the original public meaning of “liberty” in 1868 is irrelevant to the issue in Dobbs. This conclusion follows from the fact that, as understood by the Dobbs majority (and without opining as to the correctness of that understanding), the entire phrase from the Due Process Clause is a term of art. That is, the phrase has a special meaning in the law that inevitably diverges from whatever might be its original public meaning.
The Dobbs majority treats the phrase as a legal term of art when it holds that, within the Due Process Clause, the term “liberty” must refer either to one of the enumerated rights in the Bill of Rights, or to a right that is “deeply rooted in this Nation’s history and tradition.” (Dobbs majority slip op, 36, internal quotation marks omitted.) Obviously, in 1868, the original public meaning of the word “liberty” would not have been so restricted. But all original-public-meaning originalists accept, I believe, that original public meaning is not decisive when words appear in a phrase that is a term of art. Because Dobbs does not examine the original public meaning of “liberty” in the context of the Due Process Clause or in any other context, we have the “no” part of the answer.
The “yes” part derives from the fact that, in Justice Scalia’s view, perhaps the most important, fundamental virtue of original-public-meaning originalism is that it tends to prevent judges, and especially Justices of the U.S. Supreme Court, from transforming their personal policy preferences into constitutional law. The great danger Scalia identified in “the Living Constitution” is that the Court effectively amends the Constitution to reflect what a minimum of five Justices believe to be the best result, regardless of whether that result is consistent with the original public meaning of the relevant provision, and also regardless of whether that result negates laws enacted by democratically-elected legislators. The methodology of the Living Constitution, in Scalia’s view, is inconsistent with both the Article V provisions for amending the Constitution, and with the respect the judicial branch should accord to laws enacted by democratically-elected legislators in the States and the Congress.
We know, of course, that Scalia viewed both Roe and Casey as improper exercises of raw judicial power—cases in which Court majorities transformed personal policy preferences into constitutional law and, in so doing, negated the democratically-enacted statutes of dozens of States. From an originalist perspective, then, Dobbs is a case which overrules the personal policy preferences of the Roe and Casey majorities and properly returns the regulation of abortion to the States, where it resided for almost two hundred years before Roe. In that sense, and specifically because it gives effect to what originalists deem to be the fundamental virtue of originalism, Dobbs is an instance of originalism.
Posted at 6:32 AM