Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Beginning with Griswold v. Connecticut, and continuing with Roe v. Wade and Lawrence v. Texas, people have criticized decisions protecting sexual freedom because they have no basis in the text of the Constitution.
In fact all of these decisions are grounded in the text of the Constitution, but unwise Supreme Court decisions have obscured the connections. Privileges or Immunities
When the Reconstruction Congress drafted the 14th amendment, they sought to protect the basic liberties that all Americans should enjoy. They did so by creating a new constitutional guarantee that no state could abridge the privileges or immunities of citizens of the United States. They then protected non-citizens by stating that all persons are entitled to equal protection of the laws. That meant that non-citizens would enjoy the same basic civil liberties as citizens.
What are the privileges and immunities of citizens? Introducing the Fourteenth Amendment before the Senate, Senator Jacob Howard, the floor manager of the Fourteenth Amendment, explained that the privileges or immunities of citizens "are not and cannot be fully defined in their entire extent and precise nature," but that they included but were not limited to "the personal rights guarantied and secured by the first eight amendments of the Constitution."
The Reconstruction Framers did not believe that the privileges or immunities of citizens could be exhaustively listed. That is why they did not provide a laundry list in the new amendment. They are the basic rights that Americans believe they have always enjoyed or should always have enjoyed. As a result, the list of privileges or immunities might change over time.
One way of demonstrating that a right is a privilege or immunity of citizens of the United States-- but not the only way--is by looking at whether the right has been protected in most states. That is the justification often offered for cases like Griswold and Lawrence.
Because of two early decisions, the Slaughterhouse Cases and United States v. Cruikshank, the Supreme Court effectively wrote the privileges or immunities clause out of existence. In doing this, it nullified a central element of the new fourteenth amendment.
By the late nineteenth century the Supreme Court began to use the Due Process Clause to perform the function that the Privileges or Immunities Clause should have performed-- identifying and protecting the basic civil liberties of all Americans. This created a confusion, because the Due Process Clause, by its terms, speaks of denial of life, liberty or property without due process of law, rather than providing a direct substantive protection of basic liberties. As a result, generations of critics have complained about "substantive due process" and argued that it had no basis in the Constitution. The historical debate over whether due process has a substantive meaning has raged for decades, but to my mind, it is largely beside the point.
The reason that it is beside the point is that Reconstruction Framers actually placed a guarantee of what we now call "substantive due process" in the text of the Fourteenth Amendment. It was the guarantee of the privileges or immunities of citizens of the United States. The most obvious reading of this clause, and the one offered by Senator Howard in introducing the Amendment, is that the clause guarantees the basic civil liberties of all Americans.
Perhaps it is too late for courts to return to the correct understanding of the Constitution. The Justices rejected the invitation in McDonald v. City of Chicago, and so-called originalist Antonin Scalia scoffed at the very idea that the Court should embrace the Constitution's original meaning. Scalia preferred to apply the right to bear arms against the states through substantive due process-- the same doctrine that he bitterly complains about in gay rights and abortion cases. Sometimes truth is stranger than fiction.
But if the Supreme Court is unwilling to undo its egregious mistakes, at the very least lawyers and judges should stop complaining that implied fundamental rights have no basis in the text, and recognize that the Due Process Clause is doing the work intended for the Privileges and Immunities Clause.
Class and Caste Legislation
The Reconstruction Framers also placed guarantees of due process and equal protection in the Fourteenth Amendment. At the time of the 14th amendment, the idea of equal protection was a well-recognized gloss on the idea of due process. That is, everyone assumed that due process included equal protection by the government. Laws had to be general in scope and not class legislation-- legislation that imposed special burdens or benefits on a group of people without adequate public justification. That is why the Committee of Fifteen that drafted the Fourteenth Amendment noted that the text of what became the equal protection clause was actually based on the Fifth Amendment's Due Process Clause.
Introducing the due process and equal protection clauses before the Senate, Senator Howard explained: "This abolishes all class legislation in the States and does away with the injustice of subjecting one caste of persons to a code not applicable to another."
Our modern doctrines of equal protection are an incomplete attempt to realize the basic principles against class legislation and caste legislation.
Romer v. Evans, in which the citizens of Colorado attempted to strip gays--but not straights--of basic civil rights protections, is a modern day example of class legislation. So too is the statute struck down in Lawrence v. Texas, which effectively made all gay people criminals in the eyes of the law. I have also argued that Roe v. Wade is class legislation, because it imposes life-altering burdens on women, a position I shall now explain in more detail.
Abortion and Equal Protection of the Laws
When I began the intellectual odyssey that led me to the new textualism in 2005 and 2006, I started with what I (then) regarded as the most complicated case for any serious theory of constitutional textualism—the right of reproductive choice first recognized in Roe v. Wade. This was the subject of my 2007 article, Abortion and Original Meaning. What I discovered is that the textual case for Roe is not particularly difficult. The reason it appeared difficult is because of years of doctrinal glosses going back to the 1870s that mangled our understanding of the Fourteenth Amendment. And the chief culprit in modern times is the Burger Court that developed the equal protection law in the 1970s.
Roe v. Wade was written before the Supreme Court developed its sex equality jurisprudence, so that the right to abortion appears to have nothing whatsoever to do with sex equality, even though American women know differently, and knew differently in 1973 when the case was decided. Moreover, as the Burger Court developed its equal protection jurisprudence in the 1970s, it decided two cases, Geduldig v. Aiello and Personnel Administrator of Massachusetts v. Feeney, that made it very hard for well-trained lawyers to see why abortion was, at heart, an issue of sex equality.
Geduldig held that discrimination directed against pregnancy was not sex discrimination, only a discrimination against pregnant persons. This holding was laughable in 1974 and it is laughable now; it was a way for the Burger Court to give women only a limited form of equality, by taking all laws that affected pregnancy off the table. (Reva Siegel and Neil Siegel point out that the case can—and should—be read more narrowly to exclude only some pregnancy discrimination, but unfortunately, that is not how courts have read it since.)
Geduldig’s vision of social reality divided the world not between men and women but—I am not making this up— between “pregnant and non-pregnant persons.” That meant that abortion regulation, which was quite obviously and clearly directed at pregnant women, could never be a question of sex equality in the eyes of constitutional law, no matter how obviously and clearly it was a question of women’s equal status for those not trained in the niceties of the Burger Court’s jurisprudence.
Then, in 1979, the Supreme Court held that a Massachusetts preference for veterans could not be sex discrimination, even though it adopted for definitional purposes federal veteran status that had long constricted opportunities for women to serve their country. Massachusetts had created an affirmative action programs for veterans—who by federal law were primarily men throughout most of the nation’s history. Such laws, the Court explained, are not discriminatory on their face and cannot be treated as discriminating against women unless they were enacted because of, rather in than in spite of, their harm to women. Since abortion regulations are not sex discrimination, according to Geduldig, Feeney maintains that they merely have a disparate impact on women. Therefore one must show that abortion laws were enacted to punish women or out of an anti-female animus. Even if many abortion regulations are based on stereotypes about women’s decisionmaking capacities, most of them are not passed out of a deliberate desire to harm women.
The Burger Court’s confused jurisprudence in Geduldig and Feeney made it difficult for well-trained lawyers to see how abortion rights were connected to the text of the Constitution. But if we remember that the Court’s work is not identical with the Constitution, and if we strip away the glosses of forty years, we can look at the question afresh. The key questions that a textualist should ask are two:
1. Does the equal protection clause apply to laws that deny women the equal protection of the laws? The answer is surely yes.
2. Do laws that require women to bear children against their will deny them equal protection of the laws? Again, the answer is surely yes. These laws single out women for special burdens that are momentous and life-altering and that significantly affect their ability to compete with men in public life as equal citizens. Moreover, these laws deny women equal rights to sexual freedom because they deny them control over the number and timing of their children. If you want to give women truly equal status in society, an important starting point is giving them the right to control their sexuality and the terms on which they choose to accept the responsibilities of motherhood. When women—and not men—control women’s sexuality, the position of women in society advances. Such a right requires not only access to contraception but also abortion when contraception fails. State-enforced compulsory motherhood is class legislation that singles out women for special unjustified burdens that the state would never impose on men.
Such a right is subject to reasonable regulation, and it need not continue throughout the entire pregnancy, except where life and health is at stake. But even if the right is time-limited and subject to reasonable regulation, it is necessary to secure women’s equal status even if they choose never to exercise the right. We may applaud women who decide to give birth when the fetus has serious birth defects, or despite the economic and physical hardships of raising a child. But our moral approbation stems from the fact that these women have a choice; that it is their decision, and not the decision of the state.
I do not think we should let the confused equal protection jurisprudence of the Burger Court become the criterion of what the text of the Constitution actually requires. Absent these misguided glosses, a woman’s right to access to contraception and abortion is firmly rooted in the constitutional text. To critics of these rights who think they have no basis in the text, I would say, what part of “equal protection of the laws” don’t you understand?
One might object that Roe cannot fit within the equal protection clause because the right seems too “attenuated” from the text. I do not see why. A woman’s right to choose the number and timing of her children is pretty directly connected to her equal citizenship status. If you accept that women are entitled to equality under the Constitution, and if you agree that, in our contemporary society, access to abortion and contraception is at root a question of sex equality, it is difficult to see why rights to contraception and abortion are all that attenuated from a text that that specifically guarantees “equal protection of the laws.” Of course, one could always deny that access to abortion and contraception is a question of sex equality, but I would be more than happy to have that conversation.
The claim that the abortion right has only an attenuated connection to equal protection of the laws is puzzling when one views it in the context of other constitutional doctrines. The claim cannot be that a particular doctrine does not follow directly from the words of the text or is not specifically referenced in the text. For that is true of many elements of modern constitutional doctrine. By comparison, much of First Amendment doctrine—including its various doctrines of freedom of association, its intricate rules for public fora, and its special rules for prisons, schools, and government employees, seems far more attenuated from the words “Congress shall make no law . . . . abridging the freedom of speech.” And just think for a moment about modern Tenth Amendment and Eleventh Amendment decisions like Printz v. United States, Seminole Tribe and Alden v. Maine. I would argue that a right to abortion has a closer relationship to the equal protection clause than these decisions have to the text of the Tenth and Eleventh Amendments.
Claims that the abortion right has no basis in the text, I think, may conflate how controversial a right is with how distant its connection to the actual words of the Constitution. Of course, one might argue that courts should not interpret the text in ways that are controversial. But, as noted above, the abortion right is hardly the greatest offender of that principle. And the fact that a construction of the text is controversial in politics does not mean either that it is unprincipled or that it lacks a palpable connection to the text.
Liberty and Equality
The Reconstruction Framers included both guarantees of liberty and equality in the Fourteenth Amendment because they understood that the two were inseparably intertwined. Equal protection of the laws-- and therefore equal enjoyment of basic civil rights--was a privilege or immunity of citizens. Indeed, equal protection by the government was a right of anyone living within the jurisdiction of a state, and that is one reason why a separate equal protection clause protecting all "persons" was included. (The other reason was to make clear that Congress had legislative powers under section five of the Amendment to protect blacks and white unionists through laws like the Enforcement Act of 1870 and the Klan Act of 1871.)
The Reconstruction framers did not expect that their words would someday protect married women from discrimination through coverture laws, much less secure equal rights for sexual orientation minorities. But later generations are bound to follow the words they wrote, and not their original expected application.
If we understand the structural purposes of the Privileges or Immunities Clause and the Equal Protection Clause, we will recognize that the debate over substantive due process and implied fundamental rights rests on a false premise. The best reading of the words written in our Constitution protects both the sexual freedom and the civil equality of women and sexual orientation minorities.