In the last fifty years, originalism has gone from being an obscure academic theory to making national headlines. Notably, the United States Supreme Court in Dobbs v. Jackson Women’s Health Organization[1] relied on the originalist methodology of original public meaning to find that there is no fundamental right to an abortion in the 14th Amendment to the United States (“U.S”) Constitution.[2] This originalist method represents a continuing departure from the earlier practice of defining rights and constitutional interpretation based on the framers’ understanding of the U.S. Constitution.[3] Ironically, this change from the framers’ legal understanding to the public’s linguistic and social understanding is the very change progressive originalists can use, in time, to overturn Dobbs.[4] To establish the constitutional right to an abortion, advocates should hold the Supreme Court to its word that it relies on the meaning of a constitutional provision to the whole people at the time of enactment, not just political and legal elites.[5] This is easier said than done, however. To adequately consider linguistic meaning in a politically and socially diverse nation, advocates will need to analyze a more comprehensive history focusing on the whole public’s own values and understanding at the time. I refer to this more historically expansive originalism as “people’s originalism,”[6] forged of a diverse history which cannot be reduced to one meaning or one understanding because there has never been, in this country, just one understanding.[7]
As Justice Blackmun ominously predicted three decades ago, the basic holdings in Roe v. Wade[8] and Planned Parenthood v. Casey[9] have been extinguished by the Supreme Court’s decision in Dobbs.[10] But, armed with people’s originalism, a legal right to abortion may be established by different arguments than those used in the past. Most relevant for this work, the prohibition on slavery and involuntary servitude found in the 13th Amendment can be used to protect the right to an abortion.[11] Informed by the full meaning of involuntary servitude in the United States and the full history of reproductive restrictions on enslaved Americans, particularly as they were understood by those subjected to it and those who practiced it, restrictions on abortion before fetal viability are proscribed by the United States Constitution. Part I of this work will flesh out the theory of a people’s originalism and define its place among the competing originalist theories of constitutional interpretation. Part II will defend people’s originalism as a viable and desirable interpretive method. Part III will apply people’s originalism to argue that there exists a constitutional right to abortion prior to fetal viability under the 13th Amendment.
I. People’s Originalism
People’s originalism is a constitutional interpretive methodology which determines and applies the meaning of language in constitutional text based on the most common, relevant, and contemporary understanding of a term. This understanding is derived from the relevant audience for the language of the constitutional text in question evidenced by the whole of the available historical record from the time of the ratification of a given portion of the Constitution. Defining “people’s originalism” turns upon the following key phrases: “language,” “most common understanding,” “relevant,” “contemporary,” and “the whole of the available historical record.”
Here, “language” refers to a particular word or stand-alone phrase in a constitutional text. This stands in contrast to a longer set of words, such as a sentence, paragraph, or clause of the Constitution, which may reference multiple, unrelated things or concepts. This concept of “the common language of the people” acknowledges its varying, usage-dependent quality which draws an understanding of language from the diversity of contexts in which this language was used and experienced by the public.[12]
“Most common understanding” can be defined as the most agreed-upon collection of sufficiently similar understandings of the terms in question. Using “most common understanding” as a metric of the public’s understanding explicitly departs from the view that there is often, if ever, a singular “public understanding of a legal text in the period after its enactment or ratification.”[13] Indeed, this metric does not comport with the notion that the Constitution, or its amendments, necessarily “codified venerable, widely understood liberties.”[14] Rather, the most common understanding is used to acknowledge and reconcile with the controversial social circumstances that tend to establish new constitutional rights and amendments.[15] Where no singular understanding commands a majority of the relevant, contemporary public, the understanding of the language should be broadened or narrowed only as necessary to encompass a majority of this group if possible, and if not, the greatest possible plurality.[16] This process of crafting popular linguistic majorities respects the democratic virtues long espoused by originalism’s proponents.[17]
The “relevant” public emphasizes the importance of the understanding of the Americans towards whom a constitutional provision was addressed. I do not mean to suggest that the audience for every part of the Constitution is so limited, or that there is any part of the Constitution which was exclusively addressed to some, but not all Americans.[18] Instead, focusing on the “relevant” public acknowledges that some contemporary Americans were more directly impacted by certain constitutional provisions, as evidenced by the historical circumstances that gave rise to the passage and ratification of a given provision and the language of the text.[19] In weighing the relative importance of contemporary understandings, the linguistic understandings of these individuals to whom a provision was especially directed have particular, but not controlling, force.[20]
The “contemporary” public includes the public at the time of or within approximately one generation of a constitutional provision’s ratification, as the historical record best illustrates its existence, conditions, and understandings. This definition is chosen in part to respect the fact that a people’s originalism is best considered to be an innovation on original public meaning (OPM) originalism and as a way to overcome some problems that have arisen in OPM originalism’s application, such as the problem of the “reasonable readers.”[21] The framers of the Constitution and its amendments are assumed to have known, if not the full scope of their future audiences, the full scope of their contemporary audience from the most educated scholars to the most oppressed and enslaved laborers.[22] It is these people, just as much as the framers and legislative ratifiers, who came to reasonably understand the Constitution in its time by being exposed to its text and having its structure, contents, and omissions enacted upon them.[23]
“The whole of the available historical record” means just that. Currently, originalist judicial decisions focus on the history of statutory laws and constitutional meanings as represented by the works of Blackstone,[24] Story,[25] Tiffany,[26] and other respectable lawyers and dictionary authors of their respective times. While scholars’ works are valuable, they only reflect the particular social positions and perspectives of scholars and elites.[27] A historical record is much more than just these writings. It is first and foremost primary sources: journals, diaries, books, essays, newspapers, music, the whole of the written and spoken word of the general public.[28] Secondary sources such as judicial precedents and historical compendiums, which grapple with a particular set of primary or similar secondary sources, may be used to aggregate historical meanings. In surveying and analyzing the historical record, the social context and limited perspective of historical sources themselves must also be duly considered to paint as accurate a picture as possible of historical linguistic meaning.[29] Such a thorough search through history may be “sometimes better suited to the historian than the lawyer” in “hardly the ideal environment for entirely accurate historical inquiry,” but an honest examination of the full historical record is necessary for an originalism that is truly faithful to the complexities of the past.[30]
II. In Defense of People’s Originalism
Originalist methodologies tend to face a similar set of objections. These objections can be broadly categorized as indeterminacy, workability, and illegitimacy.[31] An originalist methodology is more viable if it can adequately address these objections. However, a method must also earn the moniker of “originalist” by adhering to the common beliefs of all originalist methods: that constitutional meaning is fixed at the time of ratification and that this fixed meaning is binding such that non-originalist interpretations are “contrary to law.”[32] According to these requirements, people’s originalism is both properly originalist and a viable theory of constitutional interpretation with benefits both for originalist goals and for the long-term viability of originalism. Though no historical narrative offers a complete view of history, people’s originalism results in greater determinacy, workability, and legitimacy than its originalist predecessors because it provides a just and practical methodology for aggregating understandings of constitutional language.[33] This advantage comes from the “relevant” and “most common understanding” elements of the definition.[34]
Indeterminacy is the proposition that, even if all the facts about history are known, “a competent adjudicator can square a decision in favor of either side in any given lawsuit.”[35] This is a strong charge. If it were true of even a substantial number of likely cases decided by a people’s originalism, some might suspect that the method’s adherents are nothing more than subversive forces in originalism’s ranks proposing a tool that judges can use to gild their “goal-oriented arguments” with a selective reading of history.[36] However, original public meaning originalists are left adrift when the public meaning of language at the time of ratification was not “widely understood.”[37] In other words, the original public meaning in these circumstances is indeterminate.
This work is continued in a second installation: Heroes Born of Women: Abortion, Servitude, and a People’s Originalism, Installation II. This second installation provides people’s originalism’s solutions to originalism’s challenges and discusses the impact of this methodology on the issue of abortion rights.
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[1] 142 S. Ct., 2228 (2022).
[2] See id. at 2255-56.
[3] See, e.g., Alden v. Me., 527 U.S. 706, 734 (1999); Thomas B. Colby & Peter J. Smith, Living Originalism, 59 Duke L. J. 239, 248-55 (2009).
[4] “The move to public meanings opens the door to a reconfiguration of originalism that better accounts for the ideas and experiences of women, minorities, and the working class. Public meaning originalism—at least in concept—allows some space to consider the opinions of people who were un- or under-represented in Congress and during ratification. By expanding to a general public understanding, it becomes possible to better incorporate African-American voices and experiences, including those of black women, in the interpretative process employed by originalism.” James W. Fox Jr., Counterpublic Originalism and the Exclusionary Critique, 67 Ala. L. Rev. 675, 688 (2016).
[5] “The people… refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.” District of Columbia v. Heller, 554 U.S. 570, 580 (2008) (quoting United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990)).
[6] This moniker is inspired by Howard Zinn, A People’s History of the United States: 1492-Present (1980).
[7] Even amongst legislators, “the most sensible conclusion is that many framers and ratifiers had many different understandings, and that no single or simple view can be found in history.” Cass R. Sunstein, Originalism for Liberals, The New Republic, Sept. 28, 1998, at 31.
[8] 410 U.S. 113 (1973), overruled by Dobbs, 142 S. Ct. 2228.
[9] 505 U.S. 833 (1992), overruled by Dobbs, 142 S. Ct. 2228.
[10] “I fear for the darkness as four Justices anxiously await the single vote necessary to extinguish the light.” Casey, 505 U.S. at 923 (Blackmun, J., concurring).
[11] “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” U.S. Const. amend. XIII, § 1.
[12] Nix v. Hedden, 149 U.S. 304, 307 (1893); see also Old Dominion Comm. For Fair Util Rates v. State Corp Comm’n, 294 Va. 168, 185 (2017) (citations omitted); Vyvyan Evans, Lexical concepts, cognitive models, and meaning construction, 17 Cognitive Linguistics 491 (2006).
[13] N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2127-28 (2022) (quoting Heller, 554 U.S. at 605).
[14] 554 U.S. at 605.
[15] The indeterminacy of the Constitution is not a recent phenomenon, but instead has been a part of the Constitution’s history since the beginning. Sunstein, supra note 7.
[16] This can best be thought of as a populist analogue to the Marks rule. See Marks v. United States, 430 U.S. 188, 193 (1977).
[17] See generally Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 Ind. L. J. 1, 7 (1971); Lawrence B. Solum, Originalism Versus Living Constitutionalism: The Conceptual Structure of the Great Debate, 113 Nw. U. L. Rev. 1243, 1285, 1293 (2019); but see Thomas B. Colby, Originalism and the Ratification of the Fourteenth Amendment, 107 Nw. U. L. Rev. 1627 (2013).
[18] For example, amendments which refer to “the right of the people” to one thing or another can be considered addressed to the whole people each in equal measure. E.g., U.S. Const. amends. I, II, IV.
[19] For instance, the understandings of contemporary soldiers and homeowners should be especially considered in interpreting the language of the Third Amendment, as it is an admonition to soldiers concerning homeowners, both of whom must understand the meaning of the provision for it to be practically effective even as the provision provides a general protection and admonition to all people who may in the future become soldiers or homeowners. See U.S. Const. amend. III.
[20] This view differs from the view of some original methods originalists that the Constitution, “written in the language of the law,” is addressed solely and wholly “to the officials, such as judges and other officers, … [to] officials who decide whether to enact the Constitution or to amend it,… [and to] the voting public,” not to “We the People.” John O. McGinnis & Michael B. Rappaport, The Constitution and the Language of the Law, 59 Wm. & Mary L. Rev. 1321, 1361-62 (2018).
[21] Richard H. Fallon Jr., The Chimerical Concept of Original Public Meaning, 107 Va. L. Rev. 1421, 1465-71 (2021); see also Christina Mulligan, Diverse Originalism, 21 U. Pa. J. Const. L. 379, 406-12 (2019).
[22] This standard would apply even to those who could not or did not speak fluent English, or who might have been perceived in the contemporary time as generally or manifestly unreasonable. See Brandon L. Garrett, Constitutional Reasonableness, 102 Minn. L. Rev. 61, 105-07 (2017).
[23] If there is to be any legitimate democratic sovereignty to originalism, it is found in this method of considering the contemporary audience for the constitutional text and their actual understandings of it. See Samuel Freeman, Original Meaning, Democratic Interpretation, and the Constitution, 21 Philosophy & Pub. Affairs 3 (1992).
[24] See, e.g., Heller, 554 U.S. at 593-95, 597.
[25] See, e.g., id. at 608, 610.
[26] See, e.g., id. at 577, 609.
[27] “The overwhelming majority of evidence of original meaning comes from the speech and writings of elite white men—largely because the Constitution was itself written by elite white men, and because elite white men produced most published writing, and the most writing about the Constitution in the founding era.” Mulligan, supra note 21, at 392.
[28] See, e.g., Heller, 554 U.S. at 647 n.9 (Stevens, J., dissenting).
[29] See Mulligan, supra note 21, at 412-14.
[30] Stephen E. Sachs, Originalism: Standard and Procedure, 135 Harv. L. Rev. 777, 782-83 (2022).
[31] See David A. Strauss, The Living Constitution, U. Chicago Law Sch., Sept. 27, 2010, https://www.law.uchicago.edu/news/living-constitution.
[32] Colby & Smith, supra note 3, at 264; Solum, supra note 17, at 1271.
[33] See Heroes Born of Women: Abortion, Servitude, and a People’s Originalism, Installation II, at 1-3.
[34] See supra, at 3-4.
[35] Lawrence B. Solum, On the Indeterminacy Crisis: Critiquing Critical Dogma, 54 U. Chi. L. Rev. 462, 473 (1987).
[36] This is a critique made of originalist methods across the board which, if unaddressed, risks sidelining originalist methods as “more of an academic phenomenon than a guide for legal practice.” Michael L. Smith & Alexander S. Hiland, Originalism’s Implementation Problem, 30 Wm. & Mary Bill Rts J. 1063, 1065 (2022); see also Mitchell N. Berman, Originalism is Bunk, 84 N.Y.U. L. Rev. 1, 91 (2009).
[37] Supra, note 14.
