This work is a continuation of: Heroes Born of Women: Abortion, Servitude, and a People’s Originalism, Installation I. Installation I sets out the method of people’s originalism and discusses the challenges faced by originalist methodologies. 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.
Here, people’s originalism succeeds where original public meaning (OPM) originalism fails. Measuring the “relevant,” “most common understanding” provides an answer that satisfies originalism’s democratic and communicative aspirations, and instructs judges and practitioners on how to weigh historical sources against each other.[1] Although a method that meets these democratic aspirations and their scope may not have been expected by most of the Founders in 1789, originalism has never been limited to being the same “kind of originalists the Founders were.”[2] Indeed, the reconstruction amendments and expansions of the franchise in the 19th[3] and 26th[4] amendments require us to consider the understandings of those who the Founders would never have regarded as being a proper part of the public.[5]
Addressing workability, determining majority views on historical matters using people’s originalism is far from impossible. It may be difficult to do so, prone to controversy and consistent revision as new historical evidence is discovered, but this is the job of linguists and historians of public life as well as a basic necessity of any originalist method.[6] The historical record will rarely provide a reliable poll of the public’s linguistic understandings, but this is not fatal to people’s originalism’s determinacy, legitimacy or workability.[7] People’s originalism does not promise perfection on all questions, nor does it have to.[8] It is enough that people’s originalism is preferable to OPM originalism and other methods that do not grapple with meaning among the whole public.[9]
In discussing any originalism’s legitimacy, it is necessary to acknowledge at the outset that originalism has a race problem.[10] Not only is it enormously unpopular with African Americans, it is also underinclusive of the historical perspectives of racial minorities, women, and low-income people.[11] People’s originalism does not fully remedy the problem of “democratic purchase” for these groups, but it does require a full consideration of the diverse social and linguistic perspectives of disenfranchised people of the past.[12] People’s originalism does this without sacrificing originalism’s commitment to a fixed constitutional meaning and the belief that deviations from this meaning are contrary to law. The meaning of the Constitution to the relevant members of the public in the 18th and 19th centuries does not change according to the modern views of members of today’s public. The meaning of the Constitution is fixed, just as it always has been from the time of ratification. People’s originalism does not assume that people who lived in long-gone social environments shared identical linguistic, social, or ideological commitments with people of similar identities today. Instead, it relies on the historical record of publicly available language and documentation as it actually exists. Implementing people’s originalism will not be easy, but it is necessary for originalism to gain legitimacy with a diverse public that increasingly lionizes underrepresented voices from America’s past.[13]
I. Slavery, Involuntary Servitude, and Abortion
People’s originalism is urgently needed to revitalize the constitutional argument for abortion rights under the 13th Amendment.[14] The arguments for a constitutional right to abortion as a right of privacy, due process, and gender or sex equality have all been put to rest, at least for the foreseeable future.[15] Facing this new environment, at least one federal court has requested arguments regarding the impact of the 13th Amendment on abortion rights and one state court has noted, without deciding the issue, the “uncomfortable and usually unspoken subtext of involuntary servitude swirling about [the abortion] debate . . . eerily reminiscent of earlier times about which insufficient discussion is had when reviewing the ‘history’ of laws surrounding reproductive rights in the United States.”[16]
There have been previous attempts to argue for an originalist 13th Amendment right to abortion, but they have struggled to fit square pro-choice pegs into round originalist holes.[17] Although some of these works embrace a sort of proto-people’s originalism, they do not tend to frame their arguments in originalist terms.[18] It is unsurprising then that these arguments are non-starters under the current originalist doctrine.[19] People’s originalism gives these arguments a fighting chance.
To demonstrate the applicability of people’s originalism, I briefly apply it to the Thirteenth Amendment and abortion by considering the perspectives of two of the most relevant groups in the public at the time of ratification: the former female enslaved persons, then freedwomen, and their former masters. While these groups do not seem to have much in common, they often agreed that the forced maintenance of pregnancy was a central and necessary component of the former’s enslavement and servitude.[20] Freedwomen and their former masters compose the relevant public who heard and understood that “neither slavery nor involuntary servitude… shall exist,” and imbued that language with meaning, even as they may not have fully understood its implications.[21] Forced maintenance of a pregnancy is within this “essence of involuntary servitude” and therefore, is prohibited under a people’s originalism.[22]
As evidenced in the historical record existing in and around 1865, when the Thirteenth Amendment was ratified, enslaved women frequently resorted to abortion as a means of resisting the conditions of their enslavement and reclaiming control over their own bodies and labor in the face of attempts by slavers to compel enslaved women to become and remain pregnant.[23] This compulsion followed not from positive laws, but from the private economic incentive to breed enslaved women for labor and sale.[24] Enslaved women took this act by and large “to control their own reproduction regardless of their owner’s wishes. These acts of resistance were in direct opposition to the economic powerhouse of American slavery.”[25] These frequent acts of revolt were understood as rebellion against the system of slavery precisely because “for women, loss over their reproductive capacities, and compulsion to bear children whether they wished or no, was part of the experience of being a slave.”[26] These rebellions signaled a linguistic and social understanding that the slavery to which these women were subjected included the economic task of bearing children where their body was subject to another.[27]
Ironically,[28] owners of enslaved persons who heard the 13th Amendment also understood that among the acts prohibited was control of the pregnancies of their formerly enslaved persons. Buyers and sellers of enslaved persons evaluated and set the price of enslaved women based on their ability to bear children.[29] Once enslaved women were owned, their masters considered enslaved women’s pregnancies to be “more profitable than the best man on the farm.”[30] It is no surprise then that “slave owners sought to deter and punish efforts to prevent or terminate pregnancies.”[31] “Reproductive control was used to both further slave owners ‘economic and social interests’ and as a means to ‘instill their dominion over female slaves.’”[32] This deterrence and punishment of abortion was the “essen[ce]” of slavery.[33] We should take slave owners at their word and their conduct to determine that they considered forcing female slaves to become and to remain pregnant as an essential component of slavery.
In case there might be uncertainty about the applicability of the Thirteenth Amendment to both state and private action, we can infer what the public of 1865 would have understood about the Thirteenth Amendment by comparison of its text to the text of the first section of the Fourteenth Amendment, ratified only three years later in 1868.[34] Slavery was a totalizing “system of civilization,” treating enslaved persons as “individual capital” using permission from and active facilitation by state power.[35] It follows that the total abolition of this system would apply as much to holding a person’s body as a resource for any other individual as it would apply to holding a person’s body as a resource for the state. If Congress had wished to make it clear to the public that the prohibition on slavery applied to acts only by individuals or only the state rather than to all forms of its existence, the Fourteenth Amendment’s specification of state action rather than the Thirteenth Amendment’s all-encompassing “shall exist” language was readily available.[36] Congress could even have chosen to exempt the state from the prohibition in the Thirteenth Amendment by a construction reading “no [individual] shall” or “nor shall any [individual],” but it did not do so.[37] Whether in this time one wished to remain free or to be able to enslave, this full scope of the antislavery amendment was clear.
In this “paradigmatic” case where slavery’s essence is defined by a central aspect of the experience of being or owning a slave in the antebellum period, neither the slavers nor the enslaved needed to have inferred or “expected” that the 13th Amendment would apply in the way necessitated by their social and linguistic understanding of slavery.[38] Under people’s originalism, it is not the beliefs or preferences of the people as to a political issue that control the meaning of language in constitutional text.[39] Instead, the understanding of language drawn from the diversity of contexts in which this language was used and experienced by the public determines constitutional meaning.[40] Under this framework, slavery included the elements which the directly affected members of the public considered essential to its continued existence. The forced maintenance of pregnancy was understood to be essential to slavery by the freedwomen and former slaveowners most relevant to its prohibition. Because, in the experiences of slaves and slavers, forcible control over pregnancy was as least as essential to American slavery as forced work in the fields or in the home, the Thirteenth Amendment prohibits the forced maintenance of pregnancy by the government just as it prohibits it by the enslaver.
The constitutional remedy is clear: the law must protect the right to end a pregnancy at any point in time to prevent the state from forcing the continued maintenance of an unwanted pregnancy. If this point lies before viability, this procedure is essentially an abortion.[41] If this point lies after viability, then the end of a pregnancy may permit the survival of a viable fetus at the same time as the fetus is removed from its parent’s body.[42] With this understanding, the state may substitute alternative delivery procedures after viability to safeguard the state’s interest in the potential life of the fetus and protect the right of the parent to control their own body and labor consistent with the Thirteenth Amendment’s protections.[43]
II. Conclusion
People’s originalism builds upon a long tradition of originalist schools of thought. The evolution of OPM originalism to people’s originalism as the legitimate and preferable methodology is a natural and desirable process that creates an originalism more representative of America’s history as a nation of all its people. As seen with the issue of abortion rights, applying people’s originalism opens new avenues to advocate for the rights of modern people based on the understandings of our predecessors. This issue is only one example where people’s originalism can be used to advance efforts for rights and justice in the modern originalist judiciary. Ultimately, people’s originalism provides a powerful framework for resolving many controversies regarding fundamental rights by duly considering the underrepresented members of America’s public.
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[1] See generally Heroes Born of Women: Abortion, Servitude, and a People’s Originalism, Installation I, Bork, note 17.
[2] John O. McGinnis, Were the Founders Themselves Originalists?, 46 Harv. J.L. & Pub. Pol’y 1 (2023); see Harry V. Jaffa, What Were the “Original Intentions” of the Framers of the Constitution of the United States?, 10 Seattle U. L. Rev. 351, 352-54 (1987).
[3] “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.” U.S. Const. amend. XIX, § 1.
[4] “The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.” U.S. Const. amend. XXVI, § 1.
[5] See Jaffa, supra note 2.
[6] Not only can this understanding be found through a more rigorous and weighted application of “corpus linguistics,” but other, more representative empirical methods are available. See, e.g., James A. Macleod, Finding Original Public Meaning, 56 Ga. L. Rev. 1, 28, 51-58 (2021); Khorrami v. Arizona, 143 S. Ct. 22, 25 (2022) (J., Gorsuch, dissenting from the denial of certiorari) (“plenty of evidence exists about the original public meaning of the Sixth Amendment”); but see Kevin P. Tobia, Testing Original Meaning, 134 Harv. L. Rev. 726 (2020).
[7] The first American sampling polls of any kind took place in 1824, and measured election results rather than opinions on language. See James W. Tankard, Public Opinion Polling by Newspapers in the Presidential Election Campaign of 1824, 49 Journalism Quarterly 361 (1972).
[8] If this standard were applied to all methods, no interpretive methodologies short of divine revelation would be left standing. See William Baude & Stephen E. Sachs, Book Review: The “Common-Good” Manifesto, 136 Harv. L. Rev. 861, 877 n.69 (2023) (citing Scott Alexander, Beware Isolated Demands for Rigor, Slate Star Codex (Aug. 14, 2014), https://slatestarcodex.com/2014/08/14/beware-isolated-demands-for-rigor [https://perma.cc/Z497- 9KSQ]).
[9] Linguistic controversies exist between supporters and opponents of a constitutional provision, majority and minority meanings, enfranchised and disenfranchised meanings, public and private meanings, and recorded and plausible meanings. In order, the answers of people’s originalism are: both, majorities, both and especially the disenfranchised to account for their historically motivated silence, public, and both but with plausibility only as a tiebreaker and gap-filler.
[10] See Jamal Greene, Originalism’s Race Problem, 88 Denver Law Rev. 517 (2011); see also Calvin Terbeek, “Clocks Must Always Be Turned Back”: Brown v. Board of Education and the Racial Origins of Constitutional Originalism, 115 American Political Science Rev. 821 (2021).
[11] Approximately four percent of African Americans are originalists, compared to twenty-nine percent of whites and thirty-two percent of Hispanics. See Greene, supra note 10, at 518 n.5 (citing Jamal Greene, Nathaniel Persily & Stephen Ansolabehere, Profiling Originalism, 111 Colum. L. Rev. 356, 406 (2011)).
[12] Democratic purchase refers to the idea that a system of government or legal interpretation is legitimate because people subject to these systems were or are empowered to democratically participate in them. Greene, supra note 10, at 518. Although it might be worthwhile to also incorporate the political sentiments of the disenfranchised as if they had sent delegates to the constitutional convention or to Congress, such a speculative reconstruction lies outside the scope of originalism. See Heroes Born of Women: Abortion, Servitude, and a People’s Originalism, Installation I, Mulligan, note 21, at 413.
[13] Americans today tend to “lionize” historical figures who they see as rising above the politics of the modern day. Jamal Greene, On the Origins of Originalism, 88 Tex. Law Rev. 1, 7 (2009).
[14] See Heroes Born of Women: Abortion, Servitude, and a People’s Originalism, Installation I, note 11.
[15] See generally Dobbs, 142 S. Ct. 2228 (2022).
[16] Sistersong Women of Color Reproductive Justice Collective v. State of Ga., 2022-CV-367796 at 15, n.21 (Ga. Super. Ct. Sept. 30, 2024); see also United States v. Handy, 2023 U.S. Dist. LEXIS 19585 at *5-*6 (D.D.C. Feb. 6, 2023). However, the court resolved the motion to dismiss on other grounds. See United States v. Handy, 2023 U.S. Dist. LEXIS 128346 at *4 (D.D.C., July 25, 2023) (“because this case is mainly governed by clear appellate precedent, this Court does not reach [the Thirteenth Amendment] issue”).
[17] See, e.g., Andrew Koppelman, Originalism, Abortion, and the Thirteenth Amendment, 112 Colum. L. Rev. 1917 (2012); Halley Townsend, Second Middle Passage: How Anti-Abortion Laws Perpetuate Structures of Slavery and the Case for Reproductive Justice, 25 U. Pa. J. Const. L. 185 (2023); Michele Goodwin, Involuntary Reproductive Servitude: Forced Pregnancy, Abortion, and the Thirteenth Amendment, 2022 The University of Chicago Legal Forum 191, 202-19 (2023); Michele Goodwin, Distorting the Reconstruction: A Reflection on Dobbs, 34 Yale J.L. & Feminism 30 (2023).
[18] More recent works have made some moves in this direction, and they inspire my work here. See Townsend, supra note 17.
[19] See Jamal Greene, Thirteenth Amendment Optimism, 112 Colum. L. Rev. 1733, 1740-42 (2012); Andrew Koppelman, Forced Labor Revisited: The Thirteenth Amendment and Abortion, in Alexander Tsesis, The Promises of Liberty: The History and Contemporary Relevance of the Thirteenth Amendment 226-27 (2010) (criticisms often refer to the argument for abortion rights under the Thirteenth Amendment as “lunatic,” “farcical,” “startling,” and potentially disqualifying from positions of authority).
[20] I use the words “slavery” and involuntary servitude somewhat interchangeably here because “though distinguishable…, the terms “slavery” and ‘servitude’ were closely related— so much so that one can find the term “slavery” used interchangeably with ‘servitude for life.’” Kurt T. Lash, Roe and the Original Meaning of the Thirteenth Amendment, 21 Geo. J.L. & Pub. Pol’y 131, 133-34 (2021); see also Butler v. Perry, 240 U.S. 328, 332 (1916); but see Debora Threedy, Slavery Rhetoric and the Abortion Debate, 2 Mich. J. Gender & L. 3, 17-22 (1994) (criticizing the use of slavery metaphors by pro-choice advocates where involuntary servitude offers a more rhetorically acceptable alternative).
[21] Heroes Born of Women: Abortion, Servitude, and a People’s Originalism, Installation I, note 11; contra Lash, supra note 20.
[22] Bailey v. Alabama, 219 U.S. 219, 241 (1911).
[23] I look to the historical record of action rather than diction due to the significant impact of rational self-censorship on the writings of enslaved black women, although some autobiographical writings which discuss their perspectives on childbearing indicate an understanding of reproduction under slavery as enforced labor. See, e.g., Harriet Jacobs, Incidents in the Life of a Slave Girl, written by herself 119 (1861); Peggy Cooper Davis, The Reconstruction Amendments Matter When Considering Abortion Rights, Wash. Post, (May 3, 2022, 11:32 AM), https://www.washingtonpost.com/outlook/2022/05/03/reconstruction-amendments-matter-when-considering-abortion-rights/ (citing Herbert George Gutman, The Black Family in Slavery and Freedom, 1750-1925 (1993)).
[24] Indeed, no positive laws during the antebellum period prohibited abortion before quickening when slave owners enforced this prohibition on their slaves, and the quickening distinction was abandoned as irrational around the time of the ratification of the Thirteenth Amendment. See 142, S. Ct. at 2252, 2324 nn.2-3 (Breyer, J., dissenting).
[25] Townsend, supra note 17, at 201 (quoting Shyrissa Dobbins-Harris, The Myth of Abortion as Black Genocide: Reclaiming Our Reproductive Choice, 26 Nat’l Black L.J. 85, 101 (2017) (citing Angela Y. Davis, Women, Race and Class 3 (1st ed. 1981))); see also Liese M. Perrin, Resisting Reproduction: Reconsidering Slave Reproduction in the Old South, 35 J. of American Studies 255 (2001).
[26] Koppelman, supra note 17, at 1938 nn.115-17.
[27] Even presuming that slavery could not describe forced labor in service to society or the state and that freedwomen drew their understanding of slavery from the text of the Northwest Ordinance of 1787 rather than their having been enslaved, the subjection by positive law of a pregnant person in service to a fetus does involve a “‘private economical relation between a[n] [unborn] ‘master’ and a ‘servant.’” even as slavers would have regarded both individuals as subservient. Contra Lash, supra note 20, at 144. In any case, this presumption is unwarranted. The state may not take at will the place of the master by the force of positive law, even to bind a pregnant individual in service to another. See Butler, 240 U.S. at 333 (finding that services must be “exceptional” or historically accepted as a constitutional duty of citizenship to be compelled by the state); Selective Draft Law Cases, 245 U.S. 366, 390 (1918) (same for the military draft to contribute to the “defense of the nation”); Jacobson v. Massachusetts, 197 U.S. 11, 29-30 (1905) (same for compulsory vaccination to protect the “safety of the general public”).
[28] And more helpfully due to the prolific documentation on the matter. See infra, notes 29-30.
[29] Townsend, supra note 17, at 196-200 (compiling advertisements where the price of enslaved persons was varied according to the pregnancy and fertility of an enslaved person, and cases where sales of enslaved persons were reversed due to contractual mistakes regarding pregnancy and fertility); see also Koppelman, supra note 17, at 1939-40.
[30] Koppelman, supra note 17, at 1939 n.121 (quoting Thomas Jefferson, Letter to John W. Eppes (June 30, 1820), in Thomas Jefferson’s Farm Book: With Commentary and Relevant Extracts from Other Writings 45, 46 (Edwin Morris Betts ed., 1953)).
[31] Melissa Murray, Race-ing Roe: Reproductive Justice, Racial Justice, and the Battle for Roe v. Wade, 134 Harv. L. Rev. 2025, 2034 (2021).
[32] Cynthia Soohoo, Reproductive Justice and Transformative Constitutionalism, 42 Cardozo Law Rev. 819, 829 (2021).
[33] Id.; see also Bailey, 219 U.S. at 241.
[34] “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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.” U.S. CONST. amend. XIV, § 1 (emphasis added).
[35] David Quinn, Petition and memorial of David Quinn, asking for the re-establishment of Negro slavery in the United States 16 (1866).
[36] Heroes Born of Women: Abortion, Servitude, and a People’s Originalism, Installation I, n. 11.
[37] Supra, note 34.
[38] Koppelman, supra note 17, at 1937-38, 1941.
[39] Contra John O. McGinnis & Michael Rappaport, Original Interpretive Principles as the Core of Originalism, 24 Const. Comment. 371, 372 (2007).
[40] See Heroes Born of Women: Abortion, Servitude, and a People’s Originalism, Installation I, at 3 (discussing the meaning of “language”).
[41] See Colautti v. Franklin, 439 U.S. 379, 388 (1979) (before viability, there is no “reasonable likelihood of the fetus’ sustained survival outside the womb, with or without artificial support”).
[42] Abortions after viability are exceedingly rare and generally occur due to medical complications and abnormalities. Where a safe and healthy birth procedure is possible at this point, it is generally preferred. See Women’s Health Policy, Abortions Later in Pregnancy, Kaiser Family Foundation (Dec. 5, 2019), https://www.kff.org/womens-health-policy/fact-sheet/abortions-later-in-pregnancy/.
[43] It is for this reason that the viability threshold established by Casey, 505 U.S. 833 is sensible under a Thirteenth Amendment argument.
