Some SCOTUS Originalists Are Intentionally Awful at Originalism
The SCOTUS justices responsible for Bruen proved they knew what they did in Dobbs was anti-constitutional and anti-originalist
SCOTUS’s so-called originalists simply have utterly (and too often intentionally) failed to practice originalism as the Originals did. SCOTUS’s so-called originalists in Dobbs even utterly and intentionally failed to practice originalism as they, themselves, did at the very same time as they were writing their majority and concurring opinions in Dobbs.
The same six justices responsible for Dobbs were responsible for N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022). SCOTUS published Bruen one day before Dobbs. In Bruen, the Dobbs justices invoked District of Columbia v. Heller, 554 U.S. 570 (2008):
In [Heller] the Court concluded that the Second Amendment protects the right to [ ] self-defense. [Clearly, the Second] Amendment codified a preexisting right and that this right was regarded at the time of the Amendment’s adoption as rooted in “the natural right of [ ] self-preservation.” [ ] “[T]he inherent right of self-defense,” Heller explained, is “central to the Second Amendment right.”
Heller, in fact, was far more emphatic and well-supported. “By the time of the founding, the right” of self-preservation was “fundamental for English subjects.” “Blackstone” (whose works, SCOTUS has said, “constituted the preeminent authority on English law for the founding generation”) in 1765 cited the relevant “provision of the [English] Bill of Rights [of 1689] as one of the fundamental rights of Englishmen.” Blackstone’s “description” emphasized “the natural right” of “self-preservation” and “the right” of “self-preservation and defence.” Moreover, “the most important early American edition of Blackstone’s Commentaries (by the law professor and former Antifederalist St. George Tucker) made clear” in 1803 that “Americans understood” the “right of self-preservation.”
In their own “review of founding-era sources,” the Heller majority found “nine state constitutional provisions written in the 18th century or the first two decades of the 19th, which enshrined a right of citizens” to use deadly force against other actual people “in defense of themselves” or “in defense of himself.”
“Justice James Wilson” similarly “interpreted the Pennsylvania Constitution’s” relevant “right” as “a recognition of the natural right of defense” of “one’s person or house” which “he called the law of “self preservation.” Wilson explained this “constitutional right” was “one of our many renewals of the Saxon regulations.”
Bruen (and Heller) highlighted the absurdity of obsessing over the mere text of the Constitution—especially in the manner that the same six justices did in Dobbs. The Second Amendment expressly and specifically focused solely on the “right” to merely “keep and bear Arms.” If we took the tack of the Dobbs justices, we could (and according to them, we must) start by acknowledging what the Second Amendment did not say. It clearly did not express any right to either keep or bear ammunition or any right to use either arms or ammunition. It especially clearly did not express any right to use (or even bear) any kind of arms or any kind of ammunition for any kind of personal purpose.
In Bruen, the Dobbs justices went extraordinarily far beyond anything expressly stated anywhere in the Constitution. They took a great leap back to a fundamental and obvious purpose for which people form societies: for self-defense and self-preservation. Even without the Second Amendment, we knew that was a fundamental right. The Preamble clearly emphasized that “We the People” did “ordain and establish this Constitution” to “secure the Blessings of Liberty to ourselves,” in part, by “provid[ing] for the common defence.”
One of the most remarkable aspects of Bruen was the (willful) failure of the so-called originalist justices to even mention the Preamble. They commonly insist we must start with the text of the Constitution and then we must consider its structure. Such approach clearly required them to address the words and pride of place of the Preamble. Those so-called originalists pretended to survey even extremely distant sources, but they (willfully) ignored the most obviously relevant text right before their eyes in the original Constitution. They ignored the most obviously relevant text in the entire Constitution: “We the People” did “ordain and establish this Constitution” to “secure the Blessings of Liberty to ourselves.”
An outstanding historian of our Constitution, Bernard Bailyn, in his outstanding book, The Ideological Origins of the American Revolution, explained exactly how the Originals, themselves, practiced originalism. We should and must follow their lead. It is impossible to practice originalism (or comply with our Constitution) by misrepresenting the Constitution to facilitate robbing or defrauding any part of the people of the personal and political blessings of liberty. It is impossible to practice originalism (or comply with our Constitution) by pretending that federal judges or state legislators were delegated the power to dictate to women what to do with their own bodies or compel men and women to “involuntary servitude” or dictate to men or women how to follow their own consciences as was done in Dobbs.
Bailyn emphasized concepts that are crucial to our Constitution and crucial to any sincere and serious effort to understand it: “The American Constitution is the final and climactic expression of the ideology of the American Revolution.” The people who wrote and ratified (and even those who opposed ratifying) the Constitution took great care to remain true to the principles of the American Revolution (including crucial parts of the Declaration of Independence). They consulted the documentation relevant to the American Revolution to “reach back into the sources of the received tradition, confront the ancient, traditional fears” at “the heart of the ideological origins of the Revolution, and identify and reexamine the ancient formulations” to “reinterpret them” and “reapply them” and, most importantly, “bring them up to date.”
The Declaration of Independence was written to promise that all American “Governments” would “secure” the “Rights” of all “the People” to “Life, Liberty, and the Pursuit of Happiness,” i.e., to “effect their Safety and Happiness.” Our Constitution repeatedly emphasized that the concepts of sovereignty and representation are inextricably intertwined, and that for political purposes the primary badge of sovereignty is suffrage. Our Constitution, Amendments XIII, XIV, XV, XIX, XXIV and XXVI confirm that “the people” for political purposes (American sovereigns) comprise (at least nearly) all persons born or naturalized in the U.S. and at least 18 years of age.
Any sincere and serious originalist (anyone sincerely and seriously supporting our Constitution) would compare Dobbs with Bruen, Heller and the Preamble (the Constitution’s first, most fundamental and most important text) and recognize the right of women to self-defense and self-preservation. Heller and Bruen necessarily did recognize the right of women to self-defense and self-preservation, even if they needed to terminate the life or lives of one or more actual persons.
Heller and Bruen (and the authorities they invoked) and the Preamble (especially when viewed in light of the First, Second, Fourth, Ninth, Tenth, Fourteenth, Fifteenth and Nineteenth Amendments) extremely strongly and extremely clearly confirmed a woman’s constitutional right to defend or protect herself, even if she must terminate her own pregnancy to do so. They extremely strongly and extremely clearly confirmed that the people did not (in any federal or state constitution) delegate to public servants any power to deprive of us such liberty.