Friday, July 01, 2022

Dobbs and the Relevance of Experience

Guest Blogger

Charles Barzun

Without question the most important thing about the Dobbs decision is its dramatic impact on the availability of abortion access for women in huge swaths of the country.  But given that Dobbs has thrown into question some of the Court’s most important decisions, it is worth inquiring into the decision’s implications for constitutional theory more broadly. 

What is most striking to me about Dobbs is how squarely it tees up a critical but oft-ignored question—or set of questions—for constitutional theory: What counts as social progress? And how do you know it when you see it?  Both the joint dissent and the majority opinion stake out positions that implicitly raise these questions, but neither offers an entirely satisfying answer to them.  That is hardly surprising since these questions have not generally been treated as central to constitutional law or theory.  But they are integral to both, as the Dobbs opinions demonstrate.

The Joint Dissent raises these questions most directly and obviously.  The opinion divides evenly into two parts. The first half defends Roe on the merits.  It attacks the majority for focusing on the fact that in 1868, when the 14th Amendment was ratified, the “vast majority of States criminalized abortion at all stages of pregnancy.” (Dissent 13, Majority 25).  That focus is misplaced, the Dissent argues, because it falsely assumes that our constitutional tradition may be “captured whole at a single moment.” Instead, the Constitution’s meaning “gains content from the long sweep of our history and from successive judicial precedents—each looking to the last and each seeking to apply the Constitution’s most fundamental commitments to new conditions.” (18).  And it was the Court’s more recent, twentieth-century precedents related to “bodily autonomy, sexual and familial relations, and procreation” (Griswold, etc.) that laid the constitutional foundation for Roe. (20).

The second half of the Joint Dissent is devoted to defending Roe and Casey on stare decisis grounds.  Here, the argument is that the constancy over time that stare decisis ensures is critical for vindicating the “rule of law.”  Unless there is a very good legal basis for overruling a past decision—particularly such a controversial one as Roe—the “Court needs to be steadfast, to stand its ground. That is what the rule of law requires.  And that is what respect for this Court depends on.” (56).

The two halves of the opinion seem to stand in some tension with each other.  Whereas the first half emphasizes the need for the Constitution to flexibly adapt to societal change, the second half insists upon the need for it to remain steady over time to preserve social stability. That tension between constancy and change is nicely captured in a single passage:

. . . Roe and Casey continue to reflect, not diverge from, broad trends in American society. It is, of course, true that many Americans, including many women, opposed those decisions when issued and do so now as well. Yet the fact remains: Roe and Casey were the product of a profound and ongoing change in women’s roles in the latter part of the 20th century. (46)

On the one hand, Casey and Roe must stand today because the controversy over abortion has endured (constancy).  But, on the other hand, those decisions themselves properly adapted to and reflected a “profound and ongoing change in women’s roles” (change).

This tension thus raises a version of the questions raised at the outset: How is the Court to determine which sorts of social changes the Constitution properly adapts to and which it protects against?  (Put in more doctrinal terms, the question is how the Court should determine when there are “changed factual circumstances” for the purpose of its stare decisis analysis.)

The Joint Dissent offers an answer to this question.  Following the logic of the Casey Joint Opinion, it argues that West Coast Hotel and Brown are prime examples of decisions that properly overruled earlier decisions (Adkins and Plessy, respectively) because they reflected the Court’s learning from “experience.”  In the first case, “[t]he experience undermined—in fact, it disproved—Adkins’s assumption that a wholly unregulated market could meet basic human needs.” (44)  And in the case of Brown, by the time that case was decided in 1954, “both experience and ‘modern authority’ showed the ‘detrimental effect[s]’of state-sanctioned segregation.” (45) 

The idea that law should reflect “experience” is an old one.  Oliver Wendell Holmes, Jr.’s statement that “the life of the law has not been logic: it has been experience,” is perhaps the most famous line in the history of American legal thought.  But the statement invites more questions than it answers: What counts as “experience”? Only observed and “falsifiable” facts? “Lived” experience?  And, perhaps most importantly, whose experience?

One might expect constitutional originalists to respond to these questions by observing that their intractability is precisely what motivates a rejection of “living” or “common law” constitutionalism.  But in fact, originalism—or at least the dominant form of originalism today—faces comparable questions.   

The Dobbs majority opinion illustrates why.  The majority accepts “for the sake of argument” the idea that constitutional interpretation, at least when interpreting the Due Process Clause, is not constrained by the “specific practices of States at the time of the adoption of the Fourteenth Amendment.” (33)  And it concedes the relevance of subsequent historical developments to constitutional interpretation when, in responding to the Dissent’s argument that it has restricted its focus to the 19th Century, the majority insists that its own “review of this Nation’s tradition extends well past that period” to include the history of abortion regulation into the 20th and 21st century. (36)

The majority’s approach is amply supported by modern originalist scholarship, which tends to emphasize the distinction between the “original meaning” of a constitutional provision and the “applications” of the provision that were expected by those who ratified it.  Only the former constrains interpretation.  So broad phrases like “due process of law” or “equal protection of the laws” can end up imposing constitutional constraints on governmental action in ways not envisioned by those who drafted and enacted it.

The difference, then, between the majority opinion and the Dissent is not whether applications of broadly worded constitutional provisions should change over time in light of changing facts and factual understandings but when they ought to do so. (A point the Dissent makes in a footnote (18-19)).  And that means that the position taken by the majority—and the form of originalism that supports it—raises the same sort of question faced by the Dissent: How is a judge to decide what counts as the sort of social change that requires revising or extending the scope of a constitutional provision?  In the other words, how do you know social progress when you see it?

And here I think there is a deep split in approaches.  I have in mind not the traditional split between narrow and expansive interpretations of constitutional provisions (which used to track the liberal vs. conservative ideological split, but no longer does).  Rather, the split I have in mind is generated by divergent answers to this question: When deciding whether a particular social change warrants a change in constitutional application, which considerations are properly relevant to the judge deciding the issue?

(1) The judge’s best understanding of the constitutional provision in question (whether that reading is narrow or expansive, originalist or anti-originalist).  

(2) The judge’s best understanding of the constitutional provision in question and how that social change came about (i.e., was it the product of free inquiry and democratic participation? Or was it instead the product of coercion, deception, or manipulation?).

The sorts of inquiry envisioned by these two answers differ considerably because only the second view takes seriously the Dobbs Dissent’s idea that constitutional law depends in an important way on experience.  That is because it invites historical inquiry into how social change has taken place in our society in a way that the first does not.

To illustrate, consider abortion.  On the first view, determining whether the Due Process Clause protects a right to abortion entails merely applying the constitutional provision to a set of facts.  If one has a narrow reading of the clause’s scope, perhaps on originalist grounds, then abortion is not protected, whereas if one thinks that abortion is critical to women’s autonomy and equality and that that the clause vindicates such principles (and are not outweighed by any claims on the part of the fetus), then it is protected.  But in either case, the judgment is made by applying a rule or principle to a set of facts. Period.

Taking the idea of experience seriously, however, requires broadening the inquiry.  For on the second view, the question is whether the Court has learned something that would warrant revising or expanding its application.  On this (second) view, then, it matters how and why abortion became more common and access to it increasingly demanded.  Are those social changes, most of which took place in the 1960s and 1970s, best understood as the product of a women’s movement that finally enabled women to articulate clearly and freely what they required to secure liberty and equality in a modern society and economy?  Or is abortion better understood, as Justice Thomas once suggested, as the holdover of a eugenicist movement that insufficiently valued human life at least in part because it was blinded by a racist ideology?

In my view, Justice Thomas’s view is the less plausible of the two.  But that’s not my point. Rather, the point is that under the second view described above, these sorts of historical questions are relevant to the constitutional issue because what matters is whether the social change at issue is the product of genuine learning or not. 

In articulating this second view—the one that I’ve suggested takes the role of experience in law seriously—I don’t mean to overstate its present influence.  The first view described above, which ignores these historical considerations entirely, dominates constitutional law and theory today.  But the Dobbs Joint Dissent—like the Casey Joint Opinion before it—proves that glimmers of it emerge periodically. 

The second view also has something else to be said on its behalf: its pedigree can be traced back to some of the founding generation’s most profound legal thinkers.  But defending that historical claim is a task for another time.

Charles Barzun is the Horace W. Goldsmith Research Professor of Law at the University of Virginia. You can reach him by e-mail at cbarzun at

Older Posts
Newer Posts