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Recent Supreme Court Jurisprudence and the Bill of Rights: Part 3—Schools of Thought and Dueling Supreme Court Opinions

The views expressed are those of the author and do not necessarily reflect the views of ASPA as an organization.

By Tom R. Hulst
December 19, 2022

In previous PATIMES articles, I described approaches the U.S. Supreme Court has employed in sculpting the constitutional rights of Americans. Further, that a binary view of constitutional interpretation often results in Supreme Court “decisions written as polemics to satisfy the interest groups that supported the justice’s nomination.” Finally, that the originalist school of “interpretation, in attempting to unearth original intent, often requires judges to become historians.”

Two Supreme Court cases during the 2021 term prominently featured the two dueling approaches to legal interpretation: textualism/originalism and living constitutionalism. The cases were Dobbs v. Jackson Women’s Health Organization regarding abortion; and New York State Rifle and Pistol Association Inc. et al v. Bruen concerning the Second Amendment. In both cases the Court engaged in lengthy historical textual analysis to determine what the ordinary public meaning was at the founding.

In Dobbs, Justice Alito used at least 25 pages to argue that abortion is not deeply rooted in the Nation’s history and tradition. He opined that, “guided by the history and tradition that map the essential components of our Nation’s concept of ordered liberty, we must ask what the Fourteenth Amendment means by the term “liberty.” When we engage in that inquiry in the present case, the clear answer is that the Fourteenth Amendment does not protect the right to an abortion.” He also confirmed that it depends on which view of history one subscribes to when he challenged the constitutional history related in Roe v. Wade. He wrote, “Roe featured a lengthy survey of history, but much of its discussion was irrelevant, and the Court made no effort to explain why it was included.”

Justices Breyer, Sotomayor and Kagan wrote a stirring dissent in Dobbs. While neither abortion nor privacy are mentioned in constitutional text, the dissenters argued that the values of individual freedom, autonomy and equality are indeed deeply rooted in the American experience. They wrote,  “Roe and Casey were from the beginning, and are even more now, embedded in core constitutional concepts of individual freedom, and of the equal rights of citizens to decide on the shape of their lives. . . For in this Nation, we do not believe that a government controlling all private choices is, compatible with a free people.”

The Court displayed the same sparring exegetical arguments in New York State Rifle and Pistol Association Inc. et al v. Bruen. Justice Thomas wrote for the majority: “The test we set forth in Heller and apply today requires courts to assess whether modern firearms regulations are consistent with the Second Amendment’s text and historical understanding. After surveying English history dating from the late 1600s, along with American colonial views leading up to the founding, we found “no doubt,” on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms.” 

In a strongly worded dissent, Breyer countered that, “[t]he Court’s historical analysis in this case is over 30 pages long and reviews numerous original sources from over 600 years of English and American history.” Breyer continued, “An equally searching textual and historical inquiry concluded, to the contrary, that the term “bear Arms” was an idiom that protected only the right “to use and possess arms in conjunction with service in a well-regulated militia. . . Since Heller was decided, experts have searched over 120,000 founding-era texts from between 1760 and 1799, as well as 40,000 texts from sources dating as far back as 1475, for historical uses of the phrase “bear arms,” and they concluded that the phrase was overwhelmingly used to refer to “‘war, soldiering, or other forms of armed action by a group rather than an individual.”

Misrepresentation of history—and blind adherence to dogma—by jurists can contribute to a results-oriented jurisprudence –the exact opposite of what originalists espouse. Ascertaining the original understanding through historical analysis is extremely difficult as demonstrated by Supreme Court cases this past term. Indeterminacy of the original text created ambiguity in the public understanding at the time—that remains today. David A. Strauss, from the University of Chicago Law School, wrote in The Living Constitution, “Originalism forbids the judge from putting [his or her] views on the table and openly defending them. Instead, the judge’s views have to be attributed to the Framers, and the debate has to proceed in pretend-historical terms, instead of terms of what is, more than likely, actually determining the outcome.” Originalism can encourage an over-simplified process of ’reading’ or even distorting another period of history. This can result in a sort of “colonial textualism.” Like deciphering the Rosetta Stone, the antiquated chiseled stony text is fed into a code-breaking machine and a decree is promulgated from the deities on high.

James Madison, described judicial interpretation when he wrote, “in framing a system which we wish to last for ages, we should not lose sight of the changes that ages will produce.” Judges should therefore use a combination of interpretive methodologies in achieving the proper explication of public law; and avoid slavish deference to obsolete and disputed history as well as wooden and outworn legal axioms. 

Author: Tom R. Hulst received an MA in public administration from Washington State University, served as policy advisor to Washington Governor Daniel Evans, administrator in the State Office of Public Instruction, and superintendent of Peninsula School District. He published The Footpaths of Justice William O. Douglas in 2004, been a long time ASPA member, and teaches politics at Tacoma Community College. 

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