A federal judge recently ordered a briefing on whether the 13th Amendment grounds a Constitutional right to abortion. Legal academics such as Michele Goodwin, Peggy Cooper Davis, and Andrew Koppelman have made serious originalist arguments for a right to abortion on 13th Amendment grounds. I am no originalist. But I believe that a deeper historical understanding of the law and its evolution is a valuable resource for interpreting it. Here I want to add to Goodwin, Davis, and Koppelman by linking their arguments, tied to the experience of slaves forced to reproduce before emancipation, to the civil status of free married women in the 19th century.
In Dobbs v. Jackson Women’s Health Organization, Justice Alito rejects the 14th Amendment Due Process case for a right to abortion on the ground that unenumerated substantive Due Process rights must be “deeply rooted in the nation’s history” and “implicit in the concept of ordered liberty.” He refutes the claim of deep rooting by arguing that abortion was widely prohibited under the common law in England and the U.S. before the 14th Amendment, and that such bans were extended soon after the 14th Amendment was ratified. In other words, since people didn’t think there was a constitutional right to abortion around the time of ratification, the 14th Amendment doesn’t include such a right. On his originalist methodology, the same evidence could equally well be used to refute a 13th Amendment grounding for abortion rights.
I will argue that Alito is wrong, because both before and after the Reconstruction Amendments were passed, married women were civil slaves under the law, and that the 13th Amendment bans civil slavery as well as chattel slavery. Although it took some time for the feminist movement to persuade people that the civil slavery of married women was wrong, any laws passed on the presumption of their civil slavery, such as the laws against abortion, are invalid under the 13th Amendment (and therefore cannot count as evidence against the 14th Amendment case for abortion rights either).
Alito cites common law jurists Coke, Blackstone, Hale and St. George Tucker as authorities on common law abortion bans. Tucker is a useful authority for our purposes, because his Dissertation on Slavery offers one of the clearest expositions of how people understood the term “slavery” at the time. Tucker elaborates on the classical republican understanding of a slave as anyone who is subject to the arbitrary will of another. He distinguishes three types of slavery: political, civil, and domestic. Political slaves are subject to laws they have no voice in creating–for example, colonial subjects, and disenfranchised citizens of a democratic state. Civil slaves include anyone subject to civil incapacities that other members of society do not suffer. Domestic slaves are the legal property of another–chattel. Tucker argues that domestic slavery is unjust, so it should be abolished. But, echoing Jefferson’s worries about emancipation, he proposes that free Blacks be subject to civil slavery. In particular (among other deprivations), he proposes that they be denied rights to own property and to choose how much to work and at what occupation.
The 13th Amendment bans not just chattel slavery but “the badges and incidents of slavery.” The “incidents” of slavery encompass all the civil disabilities attached to chattel slavery, including deprivation of the rights to acquire property, make contracts, sue and be sued in court, keep one’s wages, choose one’s occupation, move about freely, and be immune from physical chastisement. The “badges” of slavery include any treatment that would mark one as slave-like. It seems to me obvious that this includes the physical appropriation of one’s body for another’s personal use without one’s consent. The right to abortion is an exercise of the right to stop such appropriation.
Anyone subject to the badges and/or incidents of slavery counts as a civil slave, as Tucker defines it. Hence, the 13th Amendment bans civil as well as chattel slavery. But, under the law of coverture in the U.S., married women were subject to many of the same civil disabilities as chattel slaves, including all of those mentioned in the previous paragraph. They were civil and political slaves, as 19th-century feminists regularly complained in the U.S. as well as the U.K. Hence, the law of coverture–which subjected women to their husbands’ physical chastisement, rape, and forced reproduction, as enslaved Black women were subjected to such treatment by their masters–is unconstitutional under the 13th Amendment. Abortion bans under the common law and after the passage of the 13th Amendment were predicated on the assumption, built into coverture, that women lacked equal rights to men against the physical appropriation of their bodies for others’ personal use against their consent. So the 13th Amendment also secures a right to abortion, as does the 14th Amendment (both under Due Process and Equal Protection).
Alito’s originalist methodology assumes that the meaning of a constitutional provision is limited by and presumed consistent with the laws kept in place at the time of the provision’s ratification, or widely adopted soon after. By that logic, Brown v. Board of Education, which bans racial segregation of public schools, is as “egregiously wrong” as Roe and Casey in misinterpreting the demands of the 14th Amendment. The framers of the 13th Amendment rejected Alito’s logic in section 2, which empowers Congress to take any appropriate measures to enforce it. The framers anticipated that the abolition of slavery would be resisted, that the former slaveholding states would shortly pass new laws to create its functional equivalent. So Congress would need expansive and evolving powers to stop this–as the Supreme Court has recognized. Congress quickly learned that to undermine that resistance, the 14th and 15th Amendments were also needed. (In particular, the 14th Amendment was advanced to pre-empt the prospect that a reactionary Supreme Court would declare unconstitutional the Civil Rights Act of 1866, which was passed under the framers’ understanding of Congress’s powers under the 13th Amendment.) In Tucker’s terms, the abolition of political slavery was found necessary to abolish civil slavery, which was needed to end any means of reconstituting the functional equivalent of domestic slavery. Similarly, the 19th Amendment, under which women gained the vote, was needed to abolish the civil slavery of women–a struggle that is still ongoing, not least due to Alito’s insistence that women’s civil slavery in the 19th century continues to limit women’s rights today.
In her Dobbs dissent, Justice Kagan rightly rejects the idea that those who adopt laws to secure certain rights fully and immediately grasp every potential implication of those laws. We learn things in the course of dismantling systemic injustice. Often, we learn that the injustice is deeper than we originally thought, and that success requires broader application of legal rights than what we originally imagined, and new laws to stop attempts to nullify rights thought already legally secured. This is why the meaning of laws that ban systemic injustices and secure individual rights cannot be frozen in time, but must evolve with our evolving understandings.
{ 40 comments }
GG 04.29.23 at 9:53 pm
“It seems to me obvious that this includes the physical appropriation of one’s body for another’s personal use without one’s consent. The right to abortion is an exercise of the right to stop such appropriation.”
Who is the appropriating party in the context of abortion?
bruceJ 04.29.23 at 10:59 pm
And even here he is demonstrably wrong: as pointed out by many people, the colonial and pre-colonial prohibitions against abortion were set for ‘after the quickening’; and often explicitly stated in the relevant statutes.
This is approximately 20 weeks into the pregnancy, more or less along the lines of Roe as modified.
Still don’t know what relevamce the opinions of 16th century witchfinders have to the United States…
John Q 04.30.23 at 1:58 am
I am definitely not a lawyer. But I don’t think that matters here. The legality or otherwise of abortion is going to be determined politically, with constitutional reasoning serving merely as a particular kind of political argument. If one or other party wins both the Presidency and Congress, their position will be legislated nationally. The Supreme Court will either go along (willingly with Repubs, reluctantly with Dems) or be replaced by new members who will vote as ordered. If national control remains divided, the issue will be fought out state by state, with judicial selections/elections as one of many political battlegrounds.
JPL 04.30.23 at 2:03 am
Nice! That’s the way to do it!
I just wanted to suggest that the analysis of the inclusion dependencies might be more effective, for practical purposes, if you go through the term ‘involuntary servitude’, rather than the term ‘slavery’. The former term refers to a relation, that can be involved in some interpersonal actions, that violates general ethical principles that can be stated or described. It’s easier to critique actions with relation to ethical principles than to deal with a definition of a nominal term like ‘slavery’. Opponents might charge you of illegitimately extending a “concept” beyond its common understanding. (I put “concept” in scare quotes, because I prefer not to talk of “concepts” (due to my general anti-psychologism), but rather of (logical) “categories”; and I don’t think recognizing a subcategory of ‘civil slavery’ would be illegitimate, because making internal differentiations in a category often allow us to get a clearer idea of what exactly is the general principle that unifies the category, in this case why exactly slavery is wrong.) You’ve provided some articulations of more general ethical principles that are violated by the abominable “laws of couverture” and the ethical assumptions behind them. The laws of couverture allow the deciding of ethically relevant questions on the basis of the power principle, “pure power play”, which is categorically opposed to ethical principles, and which results in affected persons being subject to the listed “badges and incidents”, all of which violate principles such as, “the physical appropriation of one’s body for another’s personal use without one’s consent [is disallowed]”, and the principles that each person is equivalent with respect to their human worth and that any one’s autonomy of action should thus not be overridden by power of any kind from someone else. (The principles can be stated in various equivalent ways.) You can then refer to the referents of the principles (when principles are applied to the world) and the application of laws, and say that any situation of ethically relevant interaction that violates these principles constitutes a case of “involuntary servitude”, and should be covered by the law against it. You wouldn’t have to rely on the nominal inclusion argument, that married women, under the laws of couverture could be called “slaves” (although they could).
The democratic project is, I would say, and I think this is also what you are saying, all about coordinating ethical principles with principles of governance and the laws of the land, and the Supreme Court is a venue where such confrontations of ot1h the legal system and the Constitution with otoh purely ethical principles can be carried out. I think even Samuel Alito could accept that it is a fact that our ethical understanding does not remain fixed at some historical point, but evolves over time. When the Constitution was written a lot of people thought slavery was OK, and the single body of laws enacted allowed it; now we see that slavery is wrong, and by recognizing that the laws of couverture are also unjust in a similar way, we understand more clearly exactly why slavery is ethically wrong, what the general principle is. So getting the Constitution right with relation to ethical principles according to our most advanced understanding takes precedence over any approach to interpreting the original historical document.
Snarkhuntr 04.30.23 at 3:11 am
Arguing originalism with self-proclaimed originalists is, and always will be, pointless. They are uninterested in any interpretations or facts of history that do not align with their present political beliefs.
Like all conservative movements – it does not have any actual foundations beyond “we want it thusly”. Any claims of moral, historical or documentary foundation are simply positions momentarily held to advance an objective. When those ideas they claim to revere contradict their political ambitions – they will be quickly jettisoned. See also “rule of law” or “freedom of speech”
This is the thing that trips up progressives attempting to argue with conservatives. Progressives actually have beliefs and values, conservatives only have feelings and temporarily held positions. You cannot win an argument with them because you are not engaged in the same activity.
Tim Sommers 04.30.23 at 3:15 am
“the meaning of laws that ban systemic injustices and secure individual rights cannot be frozen in time, but must evolve with our evolving understandings.”
John Qs “legal realism” aside, sure, of course, but I think the current court’s conservative majority’s approach to jurisprudence fails well short of not “evolving,” especially, Alito’s Dobbs decision, which just refuses to have any theory of the case at all. You can’t understand due process of equal protection without a theory of due process or equal protection, as Dworkin said. The right to reproductive freedom falls out of any number of attempts to simply say what liberty in a liberal democracy means (all the plausible ones, I would say.) It’s a shame so many liberal legal thinkers spend so much time before Dobbs ruminating about whether Roe codified the right in the most robust and perspicuous way. I wondered what you of all people, Professor Anderson, thought of the antihierarchical argument that Sunstein (among others) made back then?
(BTW I just wrote a dissertation centered your relational egalitarianism (Dave Estlund was on my committee, first paper “Can There be Relational Equality Across Generations? Or at All?” Res Publica (April 2023)))
MisterMr 04.30.23 at 7:31 am
“Political slaves are subject to laws they have no voice in creating–for example, colonial subjects, and disenfranchised citizens of a democratic state. Civil slaves include anyone subject to civil incapacities that other members of society do not suffer. Domestic slaves…”
According to this logic immigrants are slaves.
This kind of definition of slavery is clearly rethoric, and not to be taken seriously.
More generally the anti-abortion side starts from the idea that the fetus has some sort of human right, so sidestepping the problem of whether the feti have rights or not is not going to convince anyone, it is just preaching to the choir; this also applies to discussions of costitutional rights because even costitutional rights are limited by other people’s right.
For the record, I’m happy with the law we have in Italy where abortion is a right up to the X month of pregnancy, and then not anymore save in special cases, because I see it as a reasonable balance between the pregnant woman rights and the fetus’ rights.
mw 04.30.23 at 9:53 am
The “badges” of slavery include any treatment that would mark one as slave-like. It seems to me obvious that this includes the physical appropriation of one’s body for another’s personal use without one’s consent.
I doubt this argument will prevail, but if it does, maybe the military draft will be ruled unconstitutional based on the same reasoning, and draft registration will be ended forever (rather than extended to women as some have proposed).
J-D 04.30.23 at 11:32 am
In the context of laws penalising abortion, the appropriating party is the state. If the state legally prohibits abortion, then the state is appropriating the bodies of pregnant people so that those bodies can be used as the state wishes, that is, to bring the pregnancies to term, even if the pregnant people do not consent to that use of their bodies.
Ebenezer Scrooge 04.30.23 at 1:40 pm
I am a lawyer. What John Q said. At the constitutional level, law is just priestcraft in the service of power. Only the other hierophants should care about the priestcraft. The priestcraft is a weak constraint at the best of times, and no constraint at all with the current Supreme Court.
This is not true for all law. One of my favorite judicial quotes: “In a shoot-out with the weapons of the UCC [Uniform Commercial Code], there is no guarantee that the survivor will be the party wearing the white hat.” American Federal S&L Ass’n v. Madison Valley Properties, 288 Montana 365, 380, 958 P.2d 57, 66 (1998).
oldster 04.30.23 at 1:54 pm
Tangential point, but I was surprised by this phrasing:
“He refutes the claim of deep rooting by arguing….I will argue that Alito is wrong….”
I thought philosophers used “refute” as a success term? In which case, Alito rebuts or rejects the claim, but does not refute it?
steven t johnson 04.30.23 at 3:07 pm
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Alito’s originalist methodology denies and disparages the right to abortion in clear contradiction to the Ninth Amendment under color of law, limiting the rights “retained” by the people to those excavated by lawyers’ history. The originalist methodology also contradicts the whole notion of an amendable constitution, leaving the provision for amendments irrational and inconsistent. Amendments change the meaning the entire document, revise the framework as a whole. This is why conservative jurisprudence (which is not a twentieth century novelty, even if Steven Teles thought so,) has disemboweled the Fourteenth Amendment as quickly as possible.
Originalism is not a doctrine of judicial review per se: That can be construed as the courts upholding precisely the unenumerated rights of the people (the spirit of the Constitution, supposedly,) or conforming legislation and constitution in as coherent and consistent a way as possible (the letter of the Constitution, supposedly.) Originalism is instead a doctrine of judicial supremacy, where lawyers’ history trumps both the letter of the law (the Ninth Amendment in Dobbs) and the spirit of the law (see the preamble to the Constitution, for one….or better yet, consult the history of the struggles of the people.)
Originalists will pretend that the first ten amendments, aka “Bill of Rights,” are somehow grandfathered in, exempt from their grandiose claims. I’ve seen the claim Madison thought the Ninth Amendment would prevent originalism from eroding the people’s freedom/power—in politics, these are not separate metaphysical Forms or Ideals but poles defining a spectrum of actions—but as seen, not even the Bill of Rights is exempt when push comes to shove.
Conservatives had not problem advocating the impeachment of Earl Warren for actually allowing some defense of rights into the judicial practice of the Supreme Court. But the perpetual narrowing of acceptable political discourse and practice has gone very far indeed. The entire US Supreme Court is openly corrupt, as exemplified by the unanimous support of its immunity from ethical standards.
There is an amusing precedent for attempted removal of a sitting Supreme Court. In WV, there was a provision for the state Supreme Court to command its own budget (presumably, the idea was this ensured independence by regulatory capture by the legislature.) Absurd expenditures, aka “waste,” inevitably ensued and a scandal was whipped up. All justices were impeached. The formal effects were mixed (any one interested can google.) The funniest thing was, this happened in the state which inspired that John Grisham novel about a rich guy basically buying a judge a seat on a supreme court.
MrMister 04.30.23 at 4:33 pm
“The “badges” of slavery include any treatment that would mark one as slave-like. It seems to me obvious that this includes the physical appropriation of one’s body for another’s personal use without one’s consent. The right to abortion is an exercise of the right to stop such appropriation.”
Here’s a worry: it strikes me as otiose to offer argue for the unconstitutionality of abortion bans which requires one to take it as an obvious and unargued premise that banning abortion is an exercise in the unconsented appropriation of one’s body for another’s use with no further interesting or relevant normative features. If that premise were already subject to broad agreement, there would be no need to do legal gymnastics with the 13th amendment–everyone would just agree on the merits that abortion bans are vicious and should not be enacted. But I may be missing something about who the target audience is or the intended upshot?
steven t johnson 04.30.23 at 5:04 pm
PS The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Originalism also arbitrarily revises this amendment by denying the phrase “or to the people.” This implies that the population as a whole can change its notions of freedom; of acceptable liberties, privileges and immunities; of rights and duties; of the role of government or other social arrangements in their lives. It is in a way a tacit acknowledgement of the phrase “The earth belongs to the living.” (Perhaps this was hypocrisy, but as a homage to virtue it is first rate.)
One could argue that Heller in a way acknowledged that the people were ultimate arbiters but lawyers’ history revised away the right of the people to arbitrate the use of weapons.
marcel proust 04.30.23 at 6:20 pm
Snarkhuntr: Like all conservative movements – it does not have any actual foundations beyond “we want it thusly”.
Either you are (relatively) new here or have forgotten one of the most insightful comments ever on this blog, one which subsequently went viral (in a limited sort of a way):
Quoth Frank Wilhoit:
Conservatism consists of exactly one proposition, to wit:
There must be in-groups whom the law protects but does not bind, alongside out-groups whom the law binds but does not protect.
There is nothing more or less to it, and there never has been, in any place or time.
John Q 04.30.23 at 7:57 pm
Just to clarify, I don’t think legal realism applies always and everywhere. Australia’s High Court applies legal literalism to the absurd extent that numerous Australian-born members of Parliament were disqualified as foreigners because they could, in principle, have applied for citizenship in their parents’ birthplace.
But in the US as it stands, you don’t need any theory. The political affilations of judges are stated openly, and they vote the party line. Not quite as rigidly as elected politicians do today, but more so than elected politicians did thirty years ago.
GG 04.30.23 at 10:15 pm
I confess to finding myself in something of a quandry regarding argument as put forward in the OP and the rejection of originalism as an interpretation method by the commentariat. The invocation of the 13th Amendment in the OP implies some level of belief that the framework put forward in the US Constitution is legitimate and binding. Rights, values, and definitions may change over time, as noted by a number of commenters, and the Constitution provides an explicit mechanism for how, and by who, it may be amended to reflect these changes.
Originalism (in theory, if not in practice) seeks to align the meaning of the law with this process: the meaning of a law is fixed at the time of enactment because that is explicitly the power delegated to legislators/enactors by those whom they represent. To argue otherwise seems to hold that, in addition to binding the people they represent to the contemporary meaning of the law, they are also delegated the power to bind people to future interpretations which are as yet unknown. That is simply not a responsible exercise of the legislative power, to agree on behalf of your constituents to a law whose interpretation cannot be identified.
The major alternative to the various flavors of originalism is living constitutionalism. And, as far as I can tell, living constitutionalism generally involves unilateral changes in interpretation which bypass the amendment process. For example, consider the following from The Roots of the Living Constitution (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2049498):
“He does not attempt a more general justification
of judicial review, and he does not attempt to show that common-law decision
making promotes – or at the very least does not undermine – democratic
legitimacy.” (p. 1153).
So my question for the esteemed commentariat is how the unilateral approach embodied by living constitutionalism can be reconciled with the very specific requirements of the constitutional amendment process?
J-D 05.01.23 at 12:06 am
Are you happy if people who terminate pregnancies after more than ninety days are imprisoned for doing so? If so, why?
For the record, it is my position that penalising people for terminating pregnancies does harm and no good and therefore shouldn’t be done.
JPL 05.01.23 at 2:10 am
I see a lot of pessimistic comments concerning the political realities, but it’s still important to get it right wrt the ethical foundations of the problem, as well as the critique of the Constitution and existing law, and of Supreme Court decisions from the standpoint of those foundations, regardless of the possibility of rational argument with an essentially criminal opposition party. We notice systematic suffering in the community, systematic injustice, wrongs being done to individuals, and we ask, to what extent is this suffering enabled by the laws of the land? What has mainly evolved between the formulation of the Constitution and now is our understanding of the nature of ethical systems and the ability to articulate foundational principles that perhaps were formerly tacit, and this understanding we apply to the critique of the Constitutional law. So why exactly is the overriding, by external force, power and physical strength, of personal autonomy of action (“the pursuit of happiness”) in any area of life, according to our intuitive judgment, so wrong and so bad? We would all benefit if we understood this better as a community.
Gar Lipow 05.01.23 at 5:47 am
John Quiggin: I would go a bit further than you on legal realism, but only a bit. I think that Legal Realism applies everywhere and always to some extent. That is, I think regardless of what theories are used, politics and judges political preferences play some role in their decisions. And with any judge, no matter how principled there is a chance that a particular case will hit a strongly held conviction that will trump law or legal theory. With the current USA Supreme Court, I agree that Legal Realism explains almost 100% of their decision making. I think the current decision on the abortion pill is better explained by the fact that upholding it would threaten big pharma by endangering almost every drug every approved, rather than the absurdity of the legal case. If the decision had been crated to threaten only women, it might have been upheld.
John Q 05.01.23 at 5:52 am
GG Think about “cruel and unusual punishments”. What is “unusual “changes over time, so originalism ought to incorporate that change. And who is to judge what long-dead people might have considered cruel?
Alex SL 05.01.23 at 8:14 am
I am not an American, but: seconding what Snarkhuntr wrote. Bringing logic, precedent, and reason to a contest of power isn’t going to cut it. Even less so when up against a team who consider being very visibly illogical and unreasonable and still winning to be a desirable trait, a show of dominance and of the strength of their group.
Jake Gibson 05.01.23 at 10:48 am
I’m waiting for a Ninth Amendment case.
It is there. Everyone ignores it. Except for authoritarian right wing cranks like Robert Bork.
Who just want to complain about it.
Lee A. Arnold 05.01.23 at 12:38 pm
First Amendment. “Congress shall make no law respecting an establishment of religion”
“When you think life begins” is a religious belief. And people disagree about it.
So each woman should decide the theory of life for herself. Everyone else should mind their own business.
Trader Joe 05.01.23 at 2:13 pm
Following along from the OP. If one grants the premise that under the 13th the state cannot deny the woman agency over her body for all the reasons provided.
It follows that there comes a moment when the unborn child itself becomes a “slave” (as defined) to their mother and likewise cannot be denied their rights, not the least of which being the right to not be terminated.
It then follows (as per Roe) that there is a line after which termination cannot occur without consequence. Would you agree?
If so, where do we draw that line – 6 weeks, 15 weeks, 1 trimester etc.
If you win the argument on the 13th, you might perhaps lose the war on where the line is drawn.
otto 05.01.23 at 2:34 pm
Why not – statutes protecting abortion rights at state level? and also – to the degree possible – statutes protecting abortion rights at federal level? That seems the normal way to pursue politics and policy change. US liberals (and indeed conservatives, on other issues) should try it more often.
LFC 05.01.23 at 3:19 pm
GG @17
From the unanimous Sup Ct opinion in Brown v. Bd. of Education (May 17, 1954):
I think it’s fair to say that Brown is an example of living constitutionalism — note the Court’s emphasis on the present place of public education in the U.S. (Moreover, it’s an example of living constitutionalism that I think every single member of the current Supreme Court said, in their confirmation hearings, is an unshakable precedent.)
Tm 05.01.23 at 3:36 pm
JQ is now doubt correct insofar the Supreme Court in its current composition will always vote the Republican party line. And while the SC has never been unproblematic and the myth of the unpolitical court is really just a myth (which the authors at lawyersgunsmoneyblog.com never tire of exposing), I would want to not forget that the current court’s fascist majoritiy’s behavior is truly appalling by any standard and while there were bad decisions in our life times before Roberts, the cynicism and the sheer disdain for the most fundamental principles of the rule of law are probably unprecedented for any high court in any postwar constitutional state.
And this court will not stay forever. They will die eventually. All the more frustrating is it that some reckless Democratic dumbass like Dianne Feinstein is able to singlehandedly prevent Biden from confirming the judges the country needs so urgently to even begin to restore the rule of law, and another reckless Democratic dumbass, Dick Durbin, can slow down the nomination pipeline by insisting on one of the most idiotic “Senate traditions” ever.
steven t johnson 05.01.23 at 4:19 pm
GG@17 “So my question for the esteemed commentariat is how the unilateral approach embodied by living constitutionalism can be reconciled with the very specific requirements of the constitutional amendment process?” In principle the answer is very simple: Legislation is presumed to be the will of the people when it follows the Constitution. People generally do not wish to give away their liberties, immunities and privileges, which is why there is a Constitution, a mechanism for exercising collectively all those individual liberties, immunities and privileges, the federal government exercising its delegated powers.
Originalism however is a doctrine of parliamentary supremacy of a peculiar sort, where some generations, especially the eighteenth century dead, are somehow more privileged than living people. Originalists will impeach judges, revise judicial circuits, stack federal courts with corrupt Federalist Society hacks and write new laws arbitrarily removing people’s rights. They pretend the rights spring from the Constitution instead of the Constitution springing from the people. There is a reason why some varieties of originalists have flirted with claiming Divine Intervention into the Framing of the Constitution: They are wholly arbitrary and in that sense deeply and apparently invincibly ignorant.
Consider this: “That is simply not a responsible exercise of the legislative power, to agree on behalf of your constituents to a law whose interpretation cannot be identified.”
The notion that only the constituents are the People contradicts the preamble to the Constitution, which openly, shamelessly even, claims that the People are part of a Union which aspires to be more perfect. It is absurd to imply that reducing the legislature to a meeting of fiduciary agents negotiating with hostile interests is a more perfect union.
Beyond that, the Framers were not representatives nor was their Constitution ratified by state governments. The ratifications were by the people directly, by the standards of the time, in convention.
And beyond that, the Framers most certainly did commit the future to a system where the interpretations were unknown. In fact they ended up leaving ambiguities in the Constitution in the hopes that the People, in the form of the exercise of their delegated powers in the practice of legislation by the Congress and the execution of the laws by the President and the judgments by the Federal Courts would clarify the meaning of the compromises. That is, to interpret them. The infamous Electoral College stands out. It was entirely ambiguous as written whether the Electoral College was supposed to be an independent electorate, choosing as it would the President. Or should it merely transmit the “choice” of the voters of the respective states. Even today, it is entirely unclear whether the electoral votes should be winner-take-all, or proportional to the actual vote in the states! It was Adams and Jefferson and Jackson who vociferously argued that lobbying the Electors as independent agents was undemocratic and against the will of the people.
Originalists by the way will pretend the Electoral College even as it is is somehow the will of the people, when it puts their losing candidate into office, as if it really were obvious they really are the Electors. This position is founded neither on the words of the Constitution nor on the precedent. Originalism I think is another variety of legal realism. Aside from the usual secretiveness of the deliberations hiding intent, every indication is that the Electoral College was basically lumped in. The actual persons who wrote it may have had very specific ideas about indirect election as a check on popular democracy, but, who knows? Intent has to be a part of originalism and it fails when you don’t know it.
The commerce clause, to ignore all those shady amendments, was not clear. It had to be interpreted, first by legislation, then by court decisions on how to actually implement the law. Technically, GG has rejected any role for courts, insisting that the Constitution is all, and the laws should just be enforced. This is the kind of thinking that appears to underlie the sovereign citizens movement. This necessary interpretation has always been pretended by vested interests to be unconstitutional. But the only common sense understanding of the powers conferred by the interstate commerce clause are proportional to the magnitude of interstate commerce. Thus it was inevitable that the federal government’s powers must expand along with interstate commerce. Ignoring change in real life is a requirement for originalism, and thus it fails.
Another instance where the originalist pretense that the laws were always meant to be clear is the Second Amendment. Before the Revolution, there were instances of mass lawlessness and violence and what were later called in French, journees. Perhaps the most notorious (well, it would be if history were actually taught) were tagged the Paxton boys. The phrase “a well organized militia” in this context strongly suggests to me that someone wanted a Constitutional justification for legislative interventions against disorganized violence, especially when inflicted by private agents. Originalism requires the assumption that legislative intent cannot be deceptive, which is childish at best.
One of the things about the abortion laws is that they are aimed against the People’s rights. The OP wants to set up a contorted argument that abortion is an enumerated right by an interpretation of the Thirteenth Amendment. This is sort of reasonable, given that unenumerated rights are currently denied by so many, heedless of the Ninth Amendment. But if precedent means anything, the fact that national prohibition of alcohol required justification by a constitutional amendment says the unenumerated rights of the people should exist and can only be circumvented by explicit delegation of powers. (That by the way is an example of judicial review, not judicial supremacy.) Originalism denies not just judicial review, but precedent. The irony of a doctrine that claims to be above the pressures of the moment as in living constitutionalism for instance is slave to the moment! It would be funny were it not so sinister in its effects.
The principle that judges should not preside in their own cases is the principle underlying judicial review, which incidentally includes in this country the democratic element of jury verdicts. Originalism also relies on the explicit denial of jury nullification without the embarrassment of relying on change of venue. But perhaps here I’m touching on common ground between conservative and liberal thinkers?
afeman 05.01.23 at 5:32 pm
Somehow discussion on how constitutional originalist arguments are applied towards legal cases reminds me of the heated arguments among fans of fictional universes around how to canonically resolve continuity errors, except for all the death, suffering, and madness that result from the former, and the commitment to consistency in the latter.
MisterMr 05.01.23 at 7:53 pm
@J-D 18
This would be a huge derail so I will not try to defend this position in this thread, but at some point (90 days seems reasonable) I see the fetus as a person, so it is just that the state defends this person, while the 90 days period means that the mother had time to choose to terminate pregnancy so her rights are not hurt by much (they are hurt a bit but this is justified for the above reason imo).
J-D 05.02.23 at 12:29 am
The people who wrote the original text of the US Constitution included a provision (I paraphrase, but anybody who cares to can check for themselves whether my paraphrasing introduces any relevant distortion) that if the President died or became unable to discharge the duties of the Presidency, ‘the same’ should devolve on the Vice-President. When President William Henry Harrison died in 1841, some people argued that ‘the same’ meant the duties of the Presidency and that Vice-President John Tyler should be recognised as Acting President, but not as President; other people argued that ‘the same’ meant the Presidency and that Vice-President John Tyler should be recognised as President. People understood that the meaning of the text as written and adopted was unclear, but nobody argued that the people who adopted the Constitution had no power to bind people to observance of a provision whose meaning was unclear and that therefore the provision was invalid and of no effect: that would have been silly in the extreme.
The US Constitution gives Congress the power to make laws regulating commerce with foreign nations. Some people might argue that ‘commerce’ in this context includes immigration and that therefore Congress has power to make laws regulating immigration; some people might argue that it does not include immigration and that therefore the ‘Commerce Clause’ does not give Congress power to regulate immigration; but it would be silly in the extreme to argue that because it’s not clear what’s included in ‘commerce’, it was beyond the power of the people who adopted the Constitution to include the provision and it has no effect.
The US Constitution guarantees that a citizen of one State shall have all the privileges and immunities of citizens of another State. Some people might argue that the ‘privileges and immunities’ of a citizen of a State includes the right to travel into, through, and out of a State, and that therefore no legal restrictions can be placed specifically on interstate travel by citizens of other States; some people might argue that the ‘privileges and immunities’ of a citizen of a State do not include the right to travel through the State and that therefore the ‘Privileges and Immunities Clause’ does not prevent one State from restricting travel by citizens of other States; but it would be silly in the extreme to argue that because it’s not clear what’s included in ‘privileges and immunities’ the whole clause is of no effect.
There is no such thing as a law which can be applied without interpretation, and therefore to insist that the only valid laws are those which require no interpretation is to insist that there are no valid laws.
No, this doesn’t follow.
If I am a doctor and pregnant people come to me asking to have their pregnancies terminated, I know what they want. They want their pregnancies terminated, and if I refuse to do so I am denying them what they want. There is no way for me to know anything about what the unborn want (or whether they want anything at all), and therefore that’s not a relevant factor.
If legislators decree that there should be criminal penalties for the termination of pregnancies, they are attempting to punish people for doing as they wish with their own bodies, and since they can know nothing of the wishes of the unborn those unknown wishes (if they exist at all) can provide them with no justification.
It is a good thing that New Jersey, Vermont, Oregon, and New Mexico do not have restrictive abortion laws, and it would be a good thing if more States followed their example. It is a good thing that Vermont, Michigan, and California have amended their State constitutions to protect the right to abortion, and it would be a good thing if more States followed their example. It is good for people to work towards those goals. It is also good for people to work towards the goal of better court decisions. Dobbs v. Jackson Women’s Health Organisation was a bad decision and Roe v. Wade, although imperfect, was a good one. It is not the case that the only way people can work towards better court decisions is by working to change legislation.
JPL 05.02.23 at 2:53 am
The right wing Supreme Court “justices” are simply riding roughshod over the basic human right of all women (women as a category, a subcategory of humanity as a whole) to have their personal autonomy of action, thus their pursuit of happiness, respected; this basic right has been curtailed by the justices’ decision, which lacks any sufficient or even serious rational basis in argument, and amounts to a pure power play, a basis in power, not in reasoned, ethically aware deliberation. If the original document of the Constitution did not take this situation into account, it should have. The need to resort to abortion is a practical problem that can be solved by other means.
Alex Feldman 05.02.23 at 4:09 pm
This is an important argument, but it is not original to Elizabeth Anderson. In “Killing the Black Body” (1997), Black legal scholar Dorothy Roberts developed an argument for a broad vision of reproductive justice on the basis of the 13th Amendment.* In my view, Roberts’ argument–Dorothy, not John!–is much richer than Anderson’s. Roberts defends not just the right to an abortion, but also a robust conception of reproductive freedom that includes strong protections against forced sterilization or contraception or against punitive drug-testing of mothers on welfare. And Roberts places front and center the way in which Black and indigenous women have been especially denied such reproductive freedom. The advantage of Roberts’ argument over Anderson’s, then, is that it [a] it simultaneously defends both the right to an abortion and the right to a broader set of reproductive freedoms in one sweep, that is, it derives both from a single set of premises regarding the meaning of the 13th Amendment. And [b] that it brings to the foreground the central role of race in the policing of reproduction.
*My guess is that the argument from the 13th Amendment is actually much older than this and probably has its origins in social movements.
bekabot 05.02.23 at 7:35 pm
“Who is the appropriating party in the context of abortion?”
The appropriating party is the state.
Trader Joe 05.02.23 at 7:53 pm
@32 J-D
you write “If I am a doctor and pregnant people come to me asking to have their pregnancies terminated, I know what they want. They want their pregnancies terminated, and if I refuse to do so I am denying them what they want. There is no way for me to know anything about what the unborn want (or whether they want anything at all), and therefore that’s not a relevant factor.”
The Roe decision is precisely the opposite of this. It says in fact there is a moment when the unborn child acquires rights and while we cannot know them it is decidedly in the interest of the state to defend those rights on their behalf. They went on to then set the thresholds I suggested in my post which multiple states then sought to move back which prompted Dobbs to come to the S.C. so a clarification could be made, and it was.
You may not agree with that – but it is within that ruling. If you think that ruling was poorly made and that the state has no such authority – somewhat ironically, you will be siding with Dobbs which decides exactly that, with the consequences we now see.
J-D 05.03.23 at 8:42 am
I’m not sure how to take seriously a concern about derailing when it’s coming from the person who initiated the derail but is not acknowledging the fact.
I’m also not sure how to take it seriously when somebody writes ‘I will not try to defend this position’ and then immediately tries to defend that position.
I notice, however, that the attempt at a defence includes no answer to the question I actually asked about the stated position. It is extremely common for people who support restrictions on abortion to avoid discussion of the fact that if their position does not mean imprisoning people for terminating pregnancies, it means nothing. What good does it do to imprison people for terminating pregnancies? None, as far as I can figure it out.
Tim H. 05.03.23 at 11:57 am
I suspect the malefactors of great wealth should worry about the precedents being created by (Formerly) GOP nominated judges, if an interventionist government is okay if the rights eroded are not those of their golf partners, no worries for enormous money. But political winds change, moreso post Trump, the populism he brought to U. S. right wing politics could easily turn against the interests of the .001%. The precedents set on anti-choice cases are largely set by judges recommended by the Federalist Society and may be held in higher regard than precedent set by a judge without that recommendation.
MisterMr 05.04.23 at 2:07 pm
@J-D
Yeah, sorry, of course if I think that abortion after a certain point should be illegal, then I also believe that women who had an abortion after a certain point (apart from some special circumstances) should be punished by the state, which may or may not imply prison for the formerly pregnant woman; I do not know for sure but I think the penalties are lighter in Italy though.
I do not think prison would be a practically useful penalty for abortion, because my main concern is to push people into not aborting (after a certain period and excluding reasons of health etc.), so I think a big fine should be enough.
I’m not against prison in principle though, it is just that it seems excessive.
Ian Douglas Rushlau 05.08.23 at 1:01 pm
Because I believe women should have complete bodily autonomy, I also believe there should be no interference in a woman’s decision to discontinue a pregnancy, by any person. This inclines me to be sympathetic to the author’s arguments. While I’m in no position to determine if a 13th Amendment argument rests on more solid constitutional footing than the privacy formulation of Roe, I think any such legal analysis misses a crucial element of the ‘debate’ about women’s bodily autonomy.
My impression is that all efforts in the US to restrict or eliminate access to abortion are religious endeavors, masquerading as ‘state interests’. Which is to say, any argument propounded by religious zealots to pass constitutional scrutiny are in fact a ruse. Justices Alito, Thomas and Barrett-Coney are not operating in good faith. Each looked straight at a confirmation committee and lied, without compunction, about their intentions to overturn Roe. They are parroting ‘constitutional principles’ developed, over decades, to grant the appearance of legitimacy, non-religious camouflage, to rulings that are simply naked efforts to impose Christian theocratic rule.
Of course, this would seem to violate the First Amendment (because it does). So they need to concoct ever more tortured and preposterous phrasing to avoid the appearance of relgious motives. That is, they are knowingly disingenuous in their decisions.
The Christian theocrats are (somewhat ironically I suppose) not engaging in good faith constitutional argument. Responding to their antics by trying to craft a better constitutional argument won’t make any difference, because they are in pursuit of a result, attained by securing power with anti-democratic methods.
They don’t give a damn if a woman’s bodily autonmomy is clearly protected by several provisions of the constitution, or is plainly the only moral stance one might hold.
There can be no persuading bad-faith interlocutors like Alito, Thomas and Barrett-Coney, or those who brokered their installation, because they never intended to include anyone else in the decision making process.
I wish more Americans (including legal scholars) would begin to realize this– not everyone shares the desire to preserve our constitutional democracy. Those invested in subverting it have the upper hand, especially if we afford them the presumption that they actually care about the words found in the constitution. They only care about effecting a preferred sociopolitical arrangement.
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