In its 2022 decision Dobbs v. Jackson Women’s Health Organization, the United States Supreme Court overturned nearly 50 years of legal precedent protecting the constitutional right to obtain an abortion (597 U.S. 215). The Court overruled the central holding of Roe v. Wade (1973), that the Fourteenth Amendment’s concept of personal liberty included the qualified right to terminate a pregnancy. The majority in Dobbs found Roe and its progeny “unprincipled” in terms of the “history and tradition that map the essential components of our Nation’s concept of ordered liberty.” Such “history and tradition,” which stretches back to a 13th-century English cleric writing on criminal abortion, reveals an “absence of concrete reliance” on abortion access when the relevant Amendment was passed in 1866, meaning no constitutional protection in 21st-century America is warranted.
In a recent law review article, Michele Goodwin and Allison M. Whelan argue the majority’s reading of “history and tradition” reveals an ahistoric and opportunistic approach to the Constitution, especially toward its Reconstruction Amendments passed immediately after the Civil War. By reconstructing judicial review to demand a more robust historical consciousness of the Reconstruction era, Goodwin and Whelan call attention to the gaps, silences, and omissions in historical and legal record presented by the majority in their ruling: despite a “thorough review of history,” the Court “makes no reference to Antebellum conditions, slavery, inequality, coerced or forced parenthood, or former Confederate states’ interference with, and denial of, Black family bonds, all of which served as triggers for the Amendment’s passage and ratification. These words and concepts: “slavery,” “involuntary servitude,” “forced pregnancy,” “forced birth,” and the like do not appear in its ruling. Furthermore, the Court excludes basic concepts, terms, and legal arguments relevant at ratification and essential to Reconstruction, including “abolition,” “bondage,” and “indenture.””
The alternative approach to judicial review they propose—“mixed-method judicial review” (MMJR)—seeks to reground jurisprudence in a rigorous historical recognition of the social, political, and legal conditions that necessitated the Reconstruction Amendments—that is, the horrors of American chattel slavery. By reincorporating judicial review in the history of Reconstruction and the political and moral weight of its amendments, MMJR seeks to orient adjudication towards completing the still-unfinished work of multiracial American democracy.
I want to provide a normative basis for MMJR in terms of general jurisprudence using Ronald Dworkin’s theory of legal interpretivism. More specifically, I want to show that MMJR seeks to enhance a judge’s understanding of what Dworkin called the “political morality” of a legal community. Since MMJR provides a method for ascertaining the political morality of a legal community, I argue that it better integrates current practices of judicial review with the actual historical conditions that necessitated both the Reconstruction Amendments, and thus, the political legitimacy of the American legal system. Another thread that will be teased out is the inescapably democratic character of legal interpretation, in the sense that some popular—rather than elite or technocratic—political justification is necessary for “just” interpretation.
In Law’s Empire, Dworkin argues that the law contains “the rights and duties that flow from past collective decisions and therefore license or require coercion” and the “scheme of principles needed to justify them.” Rights and responsibilities are “legal” in that they license government coercion because they “flow from past decisions of the right sort.” In this manner, he proposes “law as integrity,” which accepts the link between law and coercion by contending these constraints benefit society “by securing a kind of equality among citizens that makes their community more genuine and improves its moral justification for exercising the political power it does.” Rights and responsibilities thus “flow from,”—i.e., are consistent with—past political decisions when they “follow from the principles of personal and political morality” that decisions presuppose by way of justification. In other words, legal decisions acquire their normative weight through their integration with the past moral and political decisions of the community that have been encoded in past legal decisions. This approach certainly does not hold that past judicial decisions provide “inexorable” commands (Dobbs at 264), but it cannot be called “unprincipled.”
How judges ascertain the political morality of law is crucial when courts seek to determine the contours and meaning of constitutional rights. For Dworkin, “political morality” consists of arguments about “how far and in what way past political decisions provide necessary condition for the use of public coercion.” Law, he contends, consists in the decisions its officials make that actively “commit the community to the rights and duties that make up the law.” In doing so, he claims that judges rely on their political judgment when deciding cases because they bring together legal rules and moral principles, based on their interpretation of the legal community’s political morality. Political morality is therefore distinct from both the popular morality of a community—that is, the set of opinions about justice and other political and personal virtues that are held as matters of personal conviction by most of the members of that community—as well as from the “moral traditions” that emerge from its popular morality over some sizable historical period. A legal community is actively committed to law through the decisions that its officials make, because these judgments “commit the community to the rights and duties that make up law.” Individual conceptions of law held by particular decision-makers will provide different answers to the question of whether the rights and duties that follow from past political decisions depend on popular morality or the content of those decisions in some way—or even not at all. Hence, Dworkin understands “political morality” to be intimately related to—but not identical with—both the reasons that permit government coercion, as well as the moral traditions and matters of personal conviction held by individual members of a legal community.
Dworkin accepts both a “sense and possibility of truth in interpretation, as well as the ineffability of that truth and the familiar, irresolvable clash of opinion about where it lies.” What Dworkin proposes is a social account of interpretation that relies on the practices in which people participate and treat certain concepts as identifying a value or a vice but disagree about how it should be characterized or defined. Such a social account of interpretation is also at work in the majority’s “history and tradition” reading of the Fourteenth Amendment in Dobbs, but Goodwin and Whelan find it opportunistic and ahistoric due to its unprincipled and selective application of originalist readings. However, the co-authors criticize both conservative and liberal jurists for their failures to properly confront the racist violence that undergirds much of American history. Indeed, they argue that Reconstruction history is largely lost on the Court, “whether strategically, opportunistically, or simply blindly and in ignorance, […] seemingly oblivious to the arguments, debates, and records of American slavery and the political, economic, and other conditions of that enterprise.” As a result, contrary to its originalist pronouncements, the Court frequently “runs roughshod over the original intent of the Reconstruction Amendments.”
In response, Goodwin and Whelan understand MMJR as embedding a form of justice “firmly grounded not only in the outcomes of decisions, but also in the perception and performance of adjudication” in judicial review. To this end, MMJR incorporates two components: first, consultation with Reconstruction history and understanding to resurrect the interests of the reformed Constitution; and second, demanding empirical analysis derived from law-and-society methodologies that grapple with the real-world consequences of laws and policies. In line with these orienting components, MMJR has four specific goals—eliminating the vestiges and badges of slavery, reincorporating the Reconstruction, embracing and supporting judicial independence, and preventing discrimination—that map onto the constitutional interests of the Reconstruction as well as the Civil Rights agenda of the 1960s. Goodwin and Whelan thus seek to reconstruct the vision of multiracial democracy already embedded in the Reconstruction Amendments as a part of American political morality by embedding these interests in the practice of judicial review itself. In short, MMJR works to ensure “judicial review cannot start and stop at the founding, and it cannot recoil and shrink from it in advancing the causes of justice. It is our belief that the remembered Reconstruction and specific attention to the Thirteenth, Fourteenth, and Fifteenth Amendments—not just the Constitution as originally drafted—offer pathways for not only protecting reproductive freedoms but also sorting and responding to other important civil liberties and civil rights claims into the future.”
I have sought to justify Goodwin and Whelan’s mixed-method approach to judicial review in terms of Dworkin’s interpretivist account of political morality, drawing attention to how MMJR uses the Reconstruction Amendments to challenge selective uses of history and tradition. An additional goal has been to show that legal interpretation is, if not like politics itself, at least a democratic practice, because some integrated vision of “the Nation”—its histories, its traditions, its peoples, its values—is necessarily implicated in legal decision-making. Whether that vision bends toward an imagined historical past or constructive political future depends on which and whose perspectives are counted as providing the moral and political precedent for reading the Constitution. In this sense, MMJR can be understood as an interpretive approach that takes the historical memory and political morality of American multiracial democracy envisioned in the Reconstruction Amendments as instructive precedent for realizing those still-incomplete ends.
J. Reese Faust
J. Reese Faust is a Lecturer in Philosophy at Howard University. He specializes in transatlantic continental philosophy, philosophy of law, and critical social and political theory. Previously, he earned his Ph.D. from the University of Memphis and was awarded his LL.M. in Human Rights from Birkbeck, University of London. Currently, he is completing a monograph on constitutional and legal interpretation titled "Creolizing Jurisprudence.”
