Originalist jurists have shown that the doctrine of substantive due process – the doctrine that gave Americans the “right” to abortion, contraception, and same-sex marriage – is largely indefensible. Last summer’s Dobbs decision, for example, demonstrated that the doctrine cannot actually support a right to abortion. So one might think that, by extending the prevailing originalism in Dobbs to other issues, conservatives might regain territory lost in previous culture-war battles. But such hope will be short-lived if it is not coupled with a moral argument that is presented compellingly and convincingly to the courts. The legal analysis provided by originalist judges – as strong as it may be – fails to answer the real and essential question at the heart of the culture-war legal disputes: whether individuals have fundamental rights that cannot be curtailed by the government. To answer that question is to leave the realm of textual scholarship and enter the realm of natural law jurisprudence.
Originalism’s Victory over Substantive Due Process
The Dobbs v. Jackson Women’s Health Organization majority opinion explained that the doctrine of substantive due process cannot support the abortion rights previously articulated in Roe v. Wade and Planned Parenthood v. Casey. This opinion can be recognized as a victory of originalist jurisprudence over its progressivist alternatives. The original meaning of the Due Process Clause of the Fourteenth Amendment, as Justice Alito carefully explained, did not contain an explicit or implicit right to abortion. By looking at the Constitution’s text itself, the Court showed that the intellectual support for Constitution-based abortion rights – i.e. substantive due process – is illusory.
Justice Thomas’ concurrence pushed the envelope even further. Not content with the reversal of one bad precedent, he contended that the Court should re-examine all of its substantive due process precedents, “including Griswold, Lawrence, and Obergefell,” that is, the cases that establish Constitutional rights to contraception, homosexual intimate conduct, and same-sex marriage. And while Justice Thomas has maintained this position for over a decade,[1] the falling of Roe v. Wade gives new credence to this possibility.
So one might ask: if originalism has been victorious over substantive due process with respect to federal abortion rights, could it also prevail in other contexts? And more importantly, could the originalists’ sustained attack on often tortured Constitutional interpretations meaningfully change the course of America’s culture wars, slowing the leftward trajectory of America’s “civil rights” public policy?
Where Originalism Falls Short
Originalism is ultimately a method of textual interpretation. It therefore is only useful when a jurist is called upon to interpret a text. As originalists have long explained, this is a positive feature and not a flaw. Judges are called upon to interpret the law, and laws must have been promulgated; in America, they are written. The virtue of originalism is that, when interpreting the law, a judge is required to do so consistently with its original public meaning; a judge cannot create new interpretations based on his or her preferred policy outcomes.
All this is well and good. Originalism can thus be used to fight against unreasonable and innovative legal interpretations. But it cannot help us answer the ultimate question that the Court’s substantive due process precedents have raised. Namely, what purported individual rights, whether or not guaranteed by statutory or Constitutional language, does the government lack the power to restrict?
When we focus on this deeper question – what rights the individual retains against the state – we can see that the originalists’ attack on substantive due process is largely academic. As Justice Thomas has long recognized, the fact that a purported individual right cannot be found in the text of the Fourteenth Amendment’s due process clause does not mean that it does not exist. Perhaps these purported rights are protected by the original public meaning of the Fourteenth Amendment’s privileges and immunities clause, as he and others have suggested. But perhaps not. In any case, the fact that the Constitution is silent on a purported right does not mean that such a right does not exist, or that it can be infringed upon by the state.
Judges will continue to be presented with the question of whether the state has the power to infringe upon a purported individual right, even if the substantive due process doctrine is fully dismantled. And not all of the purported rights presented to courts are those defended by progressives. Consider recent debates about parents’ rights over their children’s education. The text of the Constitution is silent on that issue, yet the Supreme Court has held that states do not have the power to, for example, require students within its borders to attend public schools.[2]
Therefore, one committed to originalism is still forced to answer the question: are there any rights that the state is powerless to take away, even in the absence of any authoritative text-based protection in the Constitution? Answering “no” would seemingly acknowledge the absolute authority of the state over the individual, paradoxically opposing the Founders’ original understanding of the scope of the very government they created. But answering “yes” would raise questions about what these rights are, how they are discerned, and the judiciary’s role in interpreting or protecting them. And because these rights are not grounded in any textual provision of the Constitution, originalism may be helpless to provide the answers.
Natural Rights and Human Nature
When we debate whether there are rights that the state cannot infringe, we are engaging in natural law reasoning. The dubious legal jurisprudence underlying the substantive due process precedents obscured the fact that the real dispute is not about what the text of the Constitution means or says; it is about the inviolability of certain purported individual, natural, rights.
Conservatives fighting culture-war battles in courts must therefore be prepared to debate natural law – they must be prepared to make moral arguments ultimately centered on the nature of the human person.
Progressives have shown themselves quite capable of doing this. In the Supreme Court’s substantive due process cases, for example, the progressive argument was never focused on the text of the Fourteenth Amendment, but the nature of liberty and freedom, and why it is morally necessary to freely pursue certain ends, e.g., contraception, abortion, or same-sex marriage. And underlying these arguments is the philosophical claim that an individual is inherently sovereign and autonomous in matters of sexual relations, marriage, and child-bearing. Self-determination in these matters, so the argument goes, is so important for the human person that the state cannot regulate or restrict an individual’s liberty with respect to them.
In other words, progressives are making moral arguments, focusing on how humans are and ought to be autonomous agents, sovereign over a realm of privacy that encompasses decisions about sexual intimacy, marriage, and child-bearing. If no contrary moral argument is presented to the courts, especially in light of prevailing moral sensibilities and the general agreement that the state should be prevented from interfering with a couple’s sexual or marital relations, it is hard to see how originalism itself can provide a long-term solution to the leftward drift of American jurisprudence.
While we may reject the theory of the human person and morality underlying this argument, it should be clear that it is a moral argument grounded on natural law reasoning. One of the cases in which this is most clear is the leading abortion-rights case from my home state of Kansas. In Nauser v. Schmidt, the Kansas Supreme Court explicitly used natural law “reasoning” to arrive at its conclusion that women, as autonomous agents, have an inviolable right to abortion. The Nauser Court was clear: while the parties cited various provisions of the Kansas Constitution, the ultimate question was about an individual’s natural, i.e., pre-political, rights.
It is for this reason that originalism, by itself, cannot be expected to have the final word on questions about whether a purported individual right can be infringed by the state. The questions remain even when we recognize that no Constitutional text explicitly or implicitly guarantees the right’s protection. The originalist could, of course, maintain a positivist position and deny that any cognizable individual rights exist outside the textual guarantees made by the law or the Constitution. But this move may be just as dangerous as the judicial activism it is supposed to avoid; under this doctrine, no individual rights are inviolable and inalienable. The absolute power of the state over the individual is limited only by the contingent text of its Constitution and laws.
The classical story of Antigone comes to mind: she appealed to the moral duty of piety to family and the gods, over and above the dictates of positive law. She had no positive law, or any correct “originalist” interpretation thereof, upon which to defend her conduct. If she was right to show piety to her kin, and if Creon, her king, was wrong to punish her, then there are rights the state lacks the power to (justly) infringe upon. We must be prepared to articulate what those rights are, and why they cannot be infringed. This will require sustained moral argument based on a compelling picture of our nature, and ultimate good, as humans.
Conclusion
Unless we want to abandon the notion that courts can limit the state’s infringement upon natural rights (i.e., those not expressly protected by statutory or Constitutional language), we must begin to make moral arguments, based on natural law, to defend the rights we seek to protect. We must explain how these rights are based in human nature, which entails articulating and defending a true account of human nature, as opposed to its modern, secular counterfeits. Originalism can push back against faulty textual analysis, but it cannot explain what natural rights, if any, ought to be secured against government infringement. And even if one believes that ruling on natural rights is beyond the courts’ authority, the moral, natural-law argument still must be made to the American people and their lawmakers, who could in turn enact textual protections for such rights.
The Dobbs ruling has not slowed the progressive advance in the culture wars. Conservatives should not be content to make originalist arguments against specious precedent; they should be willing to present a compelling and convincing illustration of the human person, his or her ultimate end, and the rights each person possesses by nature.
[1] Evan D. Bernick, Substantive Due Process for Justice Thomas, 26 Geo. Mason L.Rev. 1087 (2019).
[2] See Wisconsin v. Yoder, 406 U.S. 205 (1972); Pierce v. Society of Sisters, 268 U.S. 510 (1925), Meyer v. Nebraska, 262 U.S. 390 (1923).
