Abortion and original meaning.

• Author: Balkin, Jack M.

1. ORIGINALISM VERSUS LIVING CONSTITUTIONALISM: A FALSE DICHOTOMY

   In his famous critique of Roe v. Wade, (1) John Hart Ely remarked that if a principle that purportedly justifies a constitutional right "lacks connection with any value the Constitution marks as special, it is not a constitutional principle and the Court has no business imposing it." (2) Criticisms of Roe have generally proceeded precisely on this ground: the right to sexual privacy is not specifically mentioned in the Constitution, and there is no evidence that the framers and adopters of the 1787 Constitution or of any later amendments expected or intended the Constitution to protect a woman's right to abortion. It has become a commonly held assumption among Roe's critics that there is no constitutional basis for abortion rights or for a right of "privacy"; the right is completely made up out of whole cloth and therefore supporters of abortion rights have cut themselves adrift from the Constitution's text, history and structure. Even some defenders of abortion rights have bought into these criticisms; they view Roe v. Wade and privacy jurisprudence as a compelling reason to accept a version of living constitutionalism that grows and changes with the times.

   The conventional wisdom about Roe, however, is wrong. The right to abortion (although not the precise reasoning in Roe itself) actually passes the test that Ely set out. It is in fact based on the constitutional text of the Fourteenth Amendment and the principles that underlie it. That is so even though the framers and adopters of the Fourteenth Amendment did not expect or intend that it would apply to abortion. In this essay I offer an argument for the right to abortion based on the original meaning of the constitutional text as opposed to its original expected application.

   I argue, among other things, that laws criminalizing abortion violate the Fourteenth Amendment's principle of equal citizenship and its prohibition against class legislation. A long history of commentators has argued that abortion rights are secured by constitutional guarantees of sex equality premised on some version of an antisubordination principle. (3) One of the goals of this article is to show that the arguments of these commentators are not novel or fanciful but have deep roots in the original meaning of the Fourteenth Amendment. Thus, the arguments I present here, although specifically directed to the abortion controversy, help underscore the constitutional and originalist pedigree of much of the antisubordination literature.

   A second, and larger purpose of my argument is to demonstrate why the debate between originalism and living constitutionalism rests on a false dichotomy. Originalists generally assume that if we do not apply the constitutional text in the way it was originally understood at the time of its adoption we are not following what the words mean and so will not be faithful to the Constitution as law. But they have tended to conflate two different ideas--the expected application of constitutional texts, which is not binding law, and the original meaning, which is. Indeed, many originalists who claim to be interested only in original meaning, like Justice Antonin Scalia, have encouraged this conflation of original meaning and original expected application in their practices of argument. (4) Living constitutionalists too have mostly accepted this conflation without question. Hence they have assumed that the constitutional text and the principles it was designed to enact cannot account for some of the most valuable aspects of our constitutional tradition. They object to being bound by the dead hand of the past. They fear that chaining ourselves to the original understanding will leave our Constitution insufficiently flexible and adaptable to meet the challenges of our nation's future. By accepting mistaken premises about interpretation-premises that they share with many originalists-living constitutionalists have unnecessarily left themselves open to the charge that they are not really serious about being faithful to the Constitution's text, history and structure.

   The choice between original meaning and living constitutionalism, however, is a false choice. I reject the assumption that fidelity to the text means fidelity to original expected application. I maintain instead that constitutional interpretation requires fidelity to the original meaning of the Constitution and to the principles that underlie the text. The task of interpretation is to look to original meaning and underlying principle and decide how best to apply them in current circumstances. I call this the method of text and principle. This approach, elaborated in Part II, is faithful to the original meaning of the constitutional text, and the purposes of those who adopted it. It is also consistent with a basic law whose reach and application evolve over time, a basic law that leaves to each generation the task of how to make sense of the Constitution's words and principles. Although the constitutional text and principles do not change without subsequent amendment, their application and implementation can. That is the best way to understand the interpretive practices of our constitutional tradition and the work of the many political and social movements that have transformed our understandings of the Constitution's guarantees.

   The right to abortion is a good test case for this approach to constitutional interpretation. Roe v. Wade is one of the canonical decisions of the present era, as Brown v. Board of Education (5) was for an earlier day, raising some of the most difficult and controversial constitutional questions. If the method of text and principle can give a reasonable account of the constitutional right to abortion, then it is likely to have considerable explanatory power in other contexts as well. In Parts III-VI, I offer the case for abortion rights based on the original meaning of the constitutional text and its underlying principles. Of course people can also use the same interpretive method to argue against the right to abortion. That is not a weakness of the approach--it shows how arguments from text and principle structure debate about constitutional rights over time between people who disagree in good faith about the best way to interpret the Constitution. Nevertheless, I shall try to show why the arguments for the abortion right are the most powerful and convincing.

   Of course, demonstrating that the right to abortion flows from the Constitution's original meaning does not end the matter. It does not tell us, for example, how to reconcile this right with the state's legitimate interests in potential human life. The Constitution's original meaning does not require either Roe's trimester system (6) or the later framework announced in Planned Parenthood of Southeastern Pennsylvania v. Casey. (7) These are judicial constructions that attempt to vindicate the purposes behind the right and balance the relevant considerations. In Part VII of this essay, I offer a better way of approaching these questions, one that the Supreme Court did not adopt. The key, I shall argue, is to recognize that there are not one, but two different rights to abortion. The first right is a woman's right not to be forced by the state to bear children at risk to her life or health. The second right is a woman's right not to be forced by the state to become a mother and thus to take on the responsibilities of parenthood, which, in our society are far more burdensome for women than for men. As I shall explain, although the first right to abortion continues throughout pregnancy, the second right need not. It only requires that women have a reasonable time to decide whether or not to become mothers and a fair and realistic opportunity to make that choice. Hence the second right to abortion is consistent with the view that the state's interests grow progressively stronger as the pregnancy proceeds.

2. THE METHOD OF TEXT AND PRINCIPLE

   1. ORIGINAL MEANING VERSUS ORIGINAL EXPECTED APPLICATION

      Constitutional interpretation by judges requires fidelity to the Constitution as law. Fidelity to the Constitution as law means fidelity to the words of the text, understood in terms of their original meaning, and to the principles that underlie the text. It follows from these premises that constitutional interpretation is not limited to those applications specifically intended or expected by the framers and adopters of the constitutional text. Thus, for example, the Eighth Amendment's prohibitions on "cruel and unusual punishments" bans punishments that are cruel and unusual as judged by contemporary application of these concepts (and underlying principles), not by how people living in 1791 would have applied those concepts and principles. (8)

      This marks the major difference between my focus on original meaning and the form of originalism that has been popularized by Justice Antonin Scalia and others. (9) Justice Scalia agrees that constitutional fidelity requires fidelity to the original meaning of the constitutional text, and the meanings that words had at the time they were adopted. (10) He also agrees that the original meaning of the text should be read in light of its underlying principles. But he insists that the concepts and principles underlying those words must be applied in the same way that they would have been applied when they were adopted. As he puts it, the principle underlying the Eighth Amendment "is not a moral principle of 'cruelty' that philosophers can play with in the future, but rather the existing society's assessment of what is cruel. It means not ... 'whatever may be considered cruel from one generation to the next,' but 'what we consider cruel today [i.e., in 1791]'; otherwise it would be no protection against the moral perceptions of a future, more brutal generation. It is, in other words, rooted in the moral perceptions of the...