Balkinization  

Thursday, August 24, 2006

My defense of originalism (and the living constitution)

JB

For the past year I've been rethinking my views on constitutional interpretation, and rereading some of the very rich literature that has developed in the past fifteen years or so, as well as studying the history of the Fourteenth Amendment.

This summer, I wrote up the results, offering a method of interpretation I call text and principle, which is both a form of originalism and a form of living constitutionalism.

Many faithful readers of this blog know that I have been very critical of originalism as it has been practiced, and have defended the idea of a living constitution. But I have gradually become convinced that these two positions are not really inconsistent with each other; only particular versions of them are. This article gives a fuller account of my views.

Not shying away from a challenge, I then decided to take on one of the defining constitutional controversies of the day, namely the constitutional right to abortion. It seemed to me that no attempt to offer a method of constitutional interpretation these days would be worthwhile unless one can explain how it applies to the constitutional controversies that concern people the most. If a theory can give a reasonable account of the right to abortion-- whether for or against-- most other issues will probably be a lot easier.

The second half of the paper applies the theory, first giving an account of the original meaning of the fourteenth amendment and then applying the theory to the right to abortion. (Actually, I conclude that there are two different rights).

About three years ago, I wrote up my best arguments for the right to abortion and published them in my edited collection, What Roe v. Wade Should Have Said. Because my views on interpretation have changed in the interim, this argument is has some important differences from the one I gave there.

I don't contend that reasonable people using my method of interpretation could not disagree with my conclusions about the right to abortion. The point of such a method is that different people using it can have a common language for discussion and analysis. I do claim that my arguments about abortion are consistent with the original meaning of the Constitution, and that, in my opinion, they are a better interpretation.

Here is the abstract for the article:

This article argues that the debate between originalism and living constitutionalism offers a false dichotomy. Many originalists and their critics improperly conflate fidelity to the original meaning of the constitutional text with fidelity to how people living at the time of adoption expected that it would be applied. That is, they confuse original meaning with original expected application.

Constitutional interpretation requires fidelity to the original meaning of the Constitution and to the principles that underlie the text, but not to original expected application. This general approach to constitutional interpretation is the method of text and principle. This approach is faithful to the original meaning of the constitutional text, and to its underlying purposes. It is also consistent with the idea of a basic law that leaves to each generation the task of how to make sense of the Constitution's words and principles in their own time. Although the constitutional text and principles do not change without subsequent amendment, their application and implementation can. That is the best way to understand the interpretive practices characteristic of our constitutional tradition and the work of the many political and social movements that have transformed our understandings of the Constitution's guarantees. It explains, as other versions of originalism cannot, why these transformations are not simply mistakes that we must grudgingly accept out of respect for settled precedent, but are significant achievements of our constitutional tradition.

The article applies this method to the most contentious constitutional issue of our generation-- the constitutional right to abortion. It concludes, contrary to conventional wisdom, that the constitutional right to abortion is consistent with the original meaning of the Fourteenth Amendment, and, in particular, its prohibition on class legislation that is embodied in the Equal Protection Clause.

The article criticizes Roe v. Wade's original trimester system, arguing that there are actually two rights to abortion instead of one. Finally, it explains how courts might have better implemented the constitutional guarantee of the two rights to abortion in ways that are more respectful of democratic politics.

UPDATE: Both Randy Barnett and Larry Solum have graciously recommended this piece, and in return I want to thank both of them for the influence they have had on my thinking on these questions. Randy's book, Restoring the Lost Constitution, was a real advance in the debate about originalism, and showed how nonoriginalists could come to terms with the arguments that originalists were making; he has elaborated these themes in various blog posts on The Volokh Conspiracy. Larry and I engaged in a long (and to my mind, very interesting) debate on our respective blogs about formalism and historicism in constitutional interpretation that also helped me sharpen my thinking. This is one example where the combination of traditional scholarship and blogging can really help scholarship.

Comments:

Attempting to articulate a dichotomy between original meaning and original expectations is, in my view, a mistake. If the original meaning of "freedom" restricted the class of free individuals to whites, however implausible that meaning of freedom is, it is difficult to understand how applying the term freedom to nonwhites is faithful to a text using the term "freedom." Dworkin attempted, unsuccessfully in my view, to distinguish between "meaning" and "expectations" also, and while arguing against the plausibility of this distinction requires a more comprehensive argument than can be presented here, I think there is little hope that the distinction will work.
 

Permit me to add one point: Of course, there might be ways of analyzing "original meaning" and original expectations" that permit a distinction between these terms. But I would argue that, explicating the meaning of a term requires placing it in its conceptual scheme which includes paradigmatic applications of the term. It’s difficult, at least for me, to appreciate how the meaning of terms within their conceptual schemes can be divorced from these paradigmatic applications. Thus, when paradigmatic applications are altered, so is the term’s meaning.
 

I think the next step may well be for originalists to clarify to what extent they think application is meaning, and why. If they don't, then I think the two really can be separated -- but the result to originalism is devastating, since it imbues constitutional "meaning" with an extraordinary degree of broadness.

After all, without even considering expected application, any lawyer knows that a set of words can mean almost anything.

While I think this is right, I think there's also truth in what Lipkin says, that we've always at least partially considered meaning to include expected application. It really has to; if not, the Constitution retains virtually no limit on the possible applications.

Quite possibly, these arguments will ultimately force Conservatives to return to the theory of original intent, which wasn't such a bad theory in the first place. How, after all, can our constitutional theory no longer even consider the intent of our constitutional framers? It will simply be slightly harder to insist on the absolute purity of the theory, or its immunity to other theories of interpretation, after the various attacks it has sustained. (Cross-posted at Washington Syndrome.)
 

Prof. Balkin graciously allows that reasonable people using his originalist methods could nonetheless disagree about the constitutionality of abortion. But I was struck by an arguably bigger dichotomy. Although not the central topic of his new paper, Prof. Balkin suggests that legislation implementing the New Deal and the Civil Rights Movement was fully justified as an application of the original meaning of the text, including “many federal laws securing the environment, protecting workers and consumers . . . not to mention independent federal agencies like the Federal Reserve Board and the Federal Communications Commission, and federal civil rights laws that protect women and the disabled from private discrimination” (p. 8). “[A] focus on text and principle views most, if not all of these achievements,” he writes, “as plausible constructions of constitutional principles that underlie the constitutional text and that must be fleshed out in doctrine” (p. 10).

Prof. Barnett, on the other hand, forcefully argues in Restoring The Lost Constitution, on the basis of the same methodology, that most (though perhaps not all) of this legislation was plainly inconsistent with the original meaning of the Commerce Clause, thereby exceeding Congress’s legitimate authority, and thus should be undone, short of formal amendment.

We thus have two radically different views about the scope of Congressional power. Now, as Prof. Barnett has pointed out on his blog, it would not be fair to hold originalism to an impossible standard (no theory will produce perfectly determinate results), but the constitutionality of the modern welfare state is hardly minor glitch that promises to be worked out through further archival research. If one takes Barnett’s challenge seriously, the stakes are high, to put it gently. So, how do we account for this glaring dichotomy? I can think of at least three possibilities:

(1) We could say that this difference of opinion is attributable to their different ideological perspectives, which color their reading of the text and the relevant principles and historical materials.

(2) We could say that the authentic original meaning of the text and principles is capacious enough to permit both views to count as reasonable applications (or constructions if you prefer) of the text, as with the case of abortion.

(3) We could say that, although both agree on the substance of the authentic original meaning of the text, one or the other of them is quite mistaken about what that meaning reasonably entails.

The most plausible answer, in my view, is (1), but in that case, the contending positions would seem to be driven by normative considerations quite apart from the original meaning. On the other hand, Prof. Balkin’s remarks about reasonable disagreement make me think that he might take issue with (2), but at that level of abstraction, wouldn’t it be difficult to account for how original meaning can function as a robust constraint on judicial decision-making?
 

Prof. Balkin graciously allows that reasonable people using his originalist methods could nonetheless disagree about the constitutionality of abortion. But I was struck by an arguably bigger dichotomy. Although not the central topic of his new paper, Prof. Balkin suggests that legislation implementing the New Deal and the Civil Rights Movement was fully justified as an application of the original meaning of the text, including “many federal laws securing the environment, protecting workers and consumers . . . not to mention independent federal agencies like the Federal Reserve Board and the Federal Communications Commission, and federal civil rights laws that protect women and the disabled from private discrimination” (p. 8). “[A] focus on text and principle views most, if not all of these achievements,” he writes, “as plausible constructions of constitutional principles that underlie the constitutional text and that must be fleshed out in doctrine” (p. 10).

Prof. Barnett, on the other hand, forcefully argues in Restoring The Lost Constitution, on the basis of the same methodology, that most (though perhaps not all) of this legislation was plainly inconsistent with the original meaning of the Commerce Clause, thereby exceeding Congress’s legitimate authority, and thus should be undone, short of formal amendment.

We thus have two radically different views about the scope of Congressional power in economic and social affairs. Now, as Prof. Barnett as pointed out, it would not be fair to hold originalism to an impossible standard (no theory will produce perfectly determinate results), but the constitutionality of the modern welfare state is hardly minor glitch that promises to be worked out through further archival research. If one takes Barnett’s challenge seriously, the stakes are high, to put it gently. So, how do we account for this glaring dichotomy? I can think of at least three possibilities:

(1) We could say that this difference of opinion is attributable to their different ideological perspectives, which color their reading of the text and the relevant principles and historical materials.

(2) We could say that the authentic original meaning of the text and principles is capacious enough to permit both views to count as reasonable applications (or constructions if you prefer) of the text, as with the case of abortion.

(3) We could say that, although both agree on the substance of the authentic original meaning of the text, one or the other of them is quite mistaken about what that meaning reasonably entails.

The most plausible answer, in my view, is (1), but in that case, the contending positions would seem to be driven by normative considerations quite apart from the original meaning. On the other hand, Prof. Balkin’s remarks about reasonable disagreement make me think that he might take issue with (2), but at that level of abstraction, wouldn’t it be difficult to account for how original meaning can function as a robust constraint on judicial decision-making?
 

Correction. First, sorry for the double post. Second, when I said inthe last sentence "take issue with (2)," it should be "agree with (2)." That got mixed up in editing.
 

For the record, though I expect that Jack and I will have some major disagreements, I have said very little in print about the constitutionality of any of these programs or laws. One reason is that each law would require separate and specific treatment in light of its particular characteristics and purported justification under the written Constitution.

In the abstract, however, I would certainly distinguish between civil rights laws and other types of regulations/prohibitions. In my view much, if not most, civil rights laws would stand under a proper interpretation of the original meaning of the Fifth and Fourteenth Amendments, but this is a topic I intend to address in future writings (including a future book). I may have my private opinions, have not yet done the heavy lifting on these topics to opine in print with authority.
 

Sam, your point about judicial constraint is well taken. But remember, fidelity to text and principle is a claim about what is necessary to be *faithful* to the Constitution, it is directed at citizens as well as judges. It is not a claim about what is necessary (or sufficient) to constrain judges.

Fidelity to text and principle does not exhaust all the tools and sources that judges may use to decide cases. Judges can use original expected application, post-enactment history, judicial and non judicial precedents (including subsequent constitutional constructions), other structural principles, intertextual implications, consequences, and considerations of judicial role. All of these limit judicial interpretations and constrain judges in addition to the requirement of fidelity to text and principle.

So even if reasonable people could disagree about text and principle and still be faithful to the Constitution, there would be a lot more that judges would have to consider to decide any particular case.

Put another way, the question of what constitutional fidelity requires is not the same question as what features of the legal system appropriately constrain judges. We shouldn't conflate these two questions. One standard argument for expectations based originalism is that it constrains judges. But since originalist judges must dispense with original expected application in a wide variety of cases (most cases involving post New Deal federal power, for example) and because judges pick and choose when they will hew to original expected application, it expectations based originalism offers far less constraint than one might imagine. In fact, other features of legal culture provide most of the necessary constraints on judges, including expectation-originalist judges like Scalia.
 

(Warning: mostly repeated from a comment to Prof. Barnett's post at Volokh.)

I like a lot of this piece: clearly we should replace substantive due process doctrine with a reliance on the privileges or immunities clause, and the article relies on Harrison's important work on the original meaning of that clause. I don't think it pushes, as Harrison does, the equal protection clause as a substantive entitlement to protection, but there's a lot of good stuff here. My article on originalism and the sense-reference distinction, now at 50 St. Louis U. L.J. 555, makes a lot of kindred points. (See pages 32 & 89 of the draft, by the way, for a few brief comments on an article by Prof. Lipkin.)

The weakest part of the article's argument is the rejection at 48-53 of the protection of the unborn child as a sufficient interest for imposing special duties on pregnant women. It's largely a rehash of the arguments from Roe itself, and he seems to be relying on the original applications of the Fourteenth Amendment, rather than the original meaning (I would prefer, Fregean sense or Carnapian intension) attached to the term "person." We have a duty as interpreters to discover the actual reference-yielding facts, not to rely on the Framers' assessments (based on 1868 biology!) of who was and wasn't a person.

At 51: "But there is no evidence that the framers or adopters of the Fourteenth Amendment sought to enact a principle that would alter common law views about the unborn." Maybe so, just like on abortion--but the chief burden of the article is that that's not dispositive; it shouldn't be dispostive here.

At 50: "But the fertilized ovum is not yet an individual." Why's that? The following text talks Roe-style about constitutional "person" clauses that don't apply to the unborn. But what's that got to do with individuality? The embryo is biologically self-organizing, so it's an individual, right?

At 52: "If the unborn are persons, states probably would not be able to refuse to impose the same penalties for abortion that they do for premeditated murder." Compare Roe's footnote 54. That's not plausible, is it? Even if they're not ultimately successful in showing a right to evict the fetus, Thomsonian/McDonagh violinist arguments at least show why there's a distinction here--person-within-a-person situations are different from situations involving a person not within another person. Abortion can be performed merely the eviction of the fetus, and the death of the fetus merely an unintended, genuinely regretted, side effect. Even if such eviction is desperately wrong, and should be punished, it isn't necessarily exactly the same thing as intentional murder.

Footnote 116 seems to ignore the state-action requirement of the due process clause.
 

I have to complain, again, about the side effects of the tendency to naturalize discussions of social behavior and law. It's something that hangs over this discussion even if it is not its subject.

Professor Balkin seems unwilling or unable to make the case for the what almost any historian would claim as the logical basis for his or her chosen field: we can never know the past, but it's nonetheless our obligation to try.
To say that we have an obligation to argument and debate -as a lawyer's obligation is to his client and the court, and not to his beliefs- is not to say that we are not bound by the the text of a law or of the Constitution. Professor Balkin refers to the logic of text and principle, but principle is a weasel word and you can argue all you want but that won't change. If one wants to argue against the over-simple understanding of language that originalists defend, you have to be prepared to argue not only that such weasel words are inevitable -indeed that discussions of value are inevitable- but that our way of government is better served by them than not.

There will be cases when meanings will be stretched. Hasidic neighborhoods have miles of string tied to all the lampposts that are then run to each house so that families will be able to go outside their houses on the sabbath while still being within a symbolic 'home.' Is that following a law or breaking it?
There is no right answer. There is no naturalized epistemology of how we choose to define ourselves and our society.

Women were not fully vested participants in this country 200 years ago. It was not assumed that they were or needed to be capable of independence. Now whether some people like it or not, women need to look out for themselves as much as men do, and they need the protection of (or from) the law due every citizen. That is an argument from a principle in the Constitution, but it is not the only possible one.

The argument between those who would hold one interpretation over another is an argument not about law but how about we define ourselves, by reference to the words on a page. Protestants and Catholics define themselves in argument over the words in the Bible. Constitutional law is no different (and God should she exist has little to do with either). To refer to 'progress' and other buzzwords of naturalism does nothing but contribute to the weakening of democracy by allowing for the belief that the argument will and should someday end.
It won't and it shouldn't.
 

I so, so wish I had written this article. (We had discussions along these lines at my old website in March 2005--see comments on this post and this post--I had vague ambitions of writing them up and submitting them, but of course I didn't. Oh well, it's not like I would have executed it 1/4 as well.)

Some (unfortunately longwinded) arguments for why the original meaning and original expected application are not the same thing, and why original expected application ought not to be considered binding in all cases:

1. The application of a legal term involves both law and facts. If the facts change, or our understanding of the facts change, the application also changes.

To take an example from one of those threads linked above--the list of species covered by the Endangered Species Act has expanded since the 1970s. In some cases because new species became endangered since the law was passed, in other cases they were endangered all along and we realized it after the law was passed.

The people who wrote the ESA probably didn't know quite what they were doing--quite how many species it would protect, what development projects it would block, etc. The people who passed the law might not have done so if they had understood how it would be applied.

Does this mean that when we add new species to the list we are being unfaithful to the original meaning of the ESA? It obviously does not. We're bound by the words Congress wrote, not the effects they expected their words to have.

So why is the same not true of the Constitution?

2. I do admit that it's a little messier with the Constitution than the Endangered Species Act. The ESA provides a definition for "endangered species"; the Constitution does not provide a comparable definition for "equal protection", "due process", "cruel and unusual", etc. And whether a given species falls under the ESA's definition is subject to empirical, scientific proof, whereas applying constitutional terms involves moral judgments as well as empirical ones.

But why, exactly, are we bound forever by the moral judgments of the original ratifiers of the constitution that were never written into the text?

What evidence is there that they expected us to be bound forever? English common law judges weren't.

And then there's the ridiculously-obvious-yet-often-ignored fact that the supermajority that ratified the Constitution actually was a minority that was illegitimately excluding blacks, women, etc. from voting. When I brought this up to Fed Society types at school, after they finished rolling their eyes at how hopelessly PC I was being, they would patiently explain that it was too late; if you're having a Constitution the text is binding and that's that.

But often we're not arguing about the text; we're arguing about factual and moral judgments beyond the text. Prof. Balkin quotes from a concurrence in Bradwell v. State in his article, which is a favorite of mine to bring up:

"man is, or should be, woman's protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood...

The paramount destiny and mission of woman are to fulfil the noble and benign offices of wife and mother. This is the law of the Creator."

The original expected application of the 14th amendment is partly based on contemporary understanding of the meaning phrases like "privileges and immunities" and "citizens of the United States" and "due process" and "equal protection"--but it's also based on the widely held beliefs that miscegenation was GROSS and women were too delicate to vote. Why on earth are those views binding? How is that legitimate? How is it suggested by the constitutional text?
 

Prof. Barnett,

If I have overstated your views I do apologize, but when I read your book, I thought it was quite far reaching in its implications. You do say, for example, that “the most expansive original meaning of the power to regulate commerce among the states would greatly restrict the powers currently claimed by Congress” (p.314). This means, among other things, that “Congress lacks the power it now claims to regulate the legal relationship between employers and employees” (p. 352), which I took to include (perhaps wrongly) not only minimum wage laws, but also laws prohibiting employment discrimination on the basis of race, gender, and disability, all of which interfere with freedom of contract in the employment context. You also say that Congress lacks the authority to regulate manufacturing and agriculture in any way whatsoever, including to eliminate the interstate effects of “harmful pollution” (p. 351), or “any activity that is not being done for profit or gain” (p.313), or “the mere possession of any good whatsoever” (id.). “One thing is certain,” you conclude, “The original meaning of the entire Constitution, as amended, is far more libertarian than the one selectively enforced by the Supreme Court. Far from wishful thinking, this conclusion is compelled by the evidence of original meaning presented here.” (p. 356) (emphasis added). I’m not saying here that any of these claims is right or wrong, good or bad. I’m merely pointing out that, if implemented, they would effect fairly dramatic changes in current practices and that you think the original meaning, properly understood, would constrain judges to reach these results. So, on your understanding, original meaning has some real bite. I hope that is a fair statement.
 

If we were forced to ignore past practice of a law and concern ourselves with the verbiage of the law, the past sins (failure to recognize women and blacks as full citizens for example) would be irrelevant... except we'd have to rewrite some of our history texts I suppose.

Since grade school I have remembered the 9th: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." This is in plain English too, and a powerful statement directing government to butt out of our personal lives!

If we interpret laws as written, using Occam's razor... taking the most obvious meaning... and it doesn't get the job done... rewrite the law.
As it is, lawyers often rewrite the law by couching arguments in legalese, twisting and torturing the language to be whatever supports the case being made. This practice allows badly written laws to remain on the books, and confusing precedent to be set.
 

"It explains, as other versions of originalism cannot, why these transformations are not simply mistakes that we must grudgingly accept out of respect for settled precedent, but are significant achievements of our constitutional tradition."

What, ALL these "transformations"? Every last one of them? Not a single one of them was a mistake?

What use is there to a Constitution that can never be violated, or misunderstood, only "transformed"?

I think you've only proven that living constitutionalism, or anyway the sort of reasoning behind it, is a universal solvent: It's as capable of destroying the meaning of competing constitutional philosophies, as it is constitutions themselves.
 

What happens when, instead of a Feminist movement, as you describe on pages 12 and 13, occurs, a "put women back in the kitchen" movement occurs? Lets say some sort of semi-generational religious reawakening moving back to traditional values, for example. Under the framework you establish, it seems then that previous constitutional understanding shoudl gave way, and that our former understanding of Feminism should regress towards Partriarchy, so long as that idea wins out in the constitutional market of ideas. What we're left with is Justice Brennan's notion of "no reverse ratcheting." I.e., that you can raise the "floor" that the constitution sets by granting more rights, but you cannot take away what has been granted--no "reverse ratcheting." But if we accept Professor Balkin's interpretive regime, we must accept that there can be reverse ratcheting and that the zeitgeist can swing in both directions.

In short, does merger of originalism and living constitutionalism implicitly include a Brennan-like "no reverse ratcheting" principle? If so, where do we find that in the Constitution under any school of interpretation? If not, how do we prevent regression and a loss of rights gained since 1789?
 

Balkin presents a persuasive case that foetuses are not considered as ‘persons’ under the constitution. When one applies the text of the 14th Amendment referring to persons to today’s conception of personhood, there is indeed nothing to suggest that it, or any other section of the constitution protects the life of the foetus. Thus, the Court cannot, as Balkin rightly notes, extend federal constitutional protection to foetuses which may be aborted under State law.

However, Balkin goes further. He claims that the Court may deny the foetuses such protection; that from reading the Constitution, the Court can conclude that the foetuses have nonexistent or minimal rights, allowing the right of the mother to trump theirs. As per Balkin’s own theory of constitutional interpretation however, there must be some text in the Constitution, the application of which, leads to Balkin’s conclusion. However, as he successfully proves- there is no such text in the first place, that can be construed to apply to foetuses at all.

Foetuses then are in legal limbo: someone has to determine what rights they have. My little sister could tell you that the Constitution is not subject to inferential rules of statutory interpretation. Balkin could have claimed that a foetus has NO rights iff he had provided some theory under which the federal government would have the power to state whether the foetus is a life, and (at least in 1973) if the federal government had actually done so. (Whether the government has done so today, I’ll leave up to you). Balkin has not attempted at providing such a theory. If he had, it is my contention that he would have fallen at the first hurdle: the federal government does have the power to make this determination. (Where that leaves various federal laws today, I’ll leave up to you to decide.)

You can see where I’m leading with this: the states get to tell you whether the foetus is a life-we have to leave the realm of sole federal jurisdiction. Now, if a state (through adjudication by its court, or clear statement in its laws) agrees that the foetus has no rights, then, again, there is no issue – each girl can have an abortion at 16. However, if a state claims that a foetus is a person then we have a situation in which one party enjoys rights conferred on it by the state, acting within its powers, and another party has rights conferred by the federal government. I honestly don’t know much about torts, but I suspect that the correct referee at this point would be a state court, who would have to weigh the rights of both parties against each other.

The thing here is to not conceive of the issue solely as the State impinging on the fundamental civil liberties of an individual, with the usual doctrinal constitutional safeguards being applied – in this case requiring a compelling state interest, to trump the liberty. The State and the woman are the only actors only in those states where the foetus is clearly NOT a person. In those states where a foetus is considered a person, we are entering the realm of balancing the rights of individuals or entities against each other, thus invoking a different set of doctrinal rules.

Finally, Balkin’s last few points regarding the fact that State laws often do not conform to the perception that a foetus is a person may weigh heavily in favor of the belief that states believe, in fact that foetuses are NOT persons, allowing the constitutional rights of women to trump their rights.

However, the determination is for a state court to make (or a federal court, if the latter get jurisdiction if one of the parties has federal rights at stake). Now, what a judge on such a tribunal may actually explain away this non-uniformity quite convincingly. To assign rights to foetuses, one does not have to conceive of them as ‘persons’, either before quickening or after quickening (as many others, more citable than me, have already pointed out). Corporations, for example, enjoy several of the rights of persons, though under no theory of expected application are they truly ‘persons’ (a quality they share with several of my dates :p ). Different entities can have a different level of rights from fully fledged persons. Thus, a society may believe that a foetus has a certain right to life less than that of a person, but fundamental nevertheless. It can value that right higher than that of a woman to have a regular abortion, unless there are circumstances that increases the burden on the woman to bear the child – one could quite conceivably make a claim that bearing a child conceived through rape or incest is heavier than that of bearing a child conceived through consensual adult sex, and that the weight of the former burden may trump rights that the latter cannot.

A final note to this LONG, LONG post is basically a thought that if Dworkin is right and foetuses do not have rights, but simply ‘detached’ value, then the action may be in federal court, as technically, the foetus would have no rights claims to assert, and it would essentially be the woman suing for her rights against alleged State interest. But that I leave for more expert minds who will hopefully comment.
 

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