The Chronicle of Madison's Tomb: Why "Roe Rage" Has Nothing To Do With Legal Theory

Matt Yglesias points me to a new article by Yale Law Professors Reva Siegel and Robert Post, entitled "Roe Rage: Democratic Constitutionalism and Popular Backlash." It makes a lot of points, but one of them is that the significance of the anti-Roe backlash has been wildly over-stated.

Law professors like to feel important. We spend a lot of time mulling over legal issues, whether an argument or case is legally sound, what is the "right" answer to legal questions. And so, on the rare occasion that a legal case animates a good chunk of the American people, as Roe has, we like to delude ourselves into thinking that the broader population is thinking about the case the same way we are--as law, not policy. We talk about whether kicking the issue to legislatures will or will not accord their decision greater popular legitimacy. Fans of strict constructionism or originalism deploy those legal arguments as to why the decision was wrong, and argue that the opinion's lack of grounding in these concrete principles of law explain and justify the popular resistance to it. Above all else, we frame the debate as not being "results-oriented" (indeed, one of the critiques levied at Roe is that it was "results-oriented"). The entire discourse helps persuade ourselves that the legal theory debates that normally stay internal to the academy have real world significance.

To put it bluntly: this wildly overestimates the background the average person has in legal theory. People simply aren't that wedded to particular models of judicial interpretation. People are results oriented. The people who want to see abortion legal will support Roe because it insures that legality. The people who want abortion outlawed oppose Roe because it prevents that outcome. Some people might enlist these theoretical battles as support for their preferred side, but any honest observer knows that the tail is wagging the dog. Outside a select few, the questions of whether or not Roe fits a certain legal theory or principle is simply not the controlling issue. Ultimately, Roe is controversial solely because abortion is controversial, and the legal particulars of the ruling have very little to do with it.

To illustrate this point, I give you, for the first time, the Chronicle of Madison's Tomb:

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It was a stunning find. Buried away in a Richmond museum's storage warehouse, a curator stumbled across a box containing hitherto unknown letters, essays, correspondences, and other personal effects of James Madison. It was a veritable treasure trove of information. Much of the material was useful only to flesh out the details of Madison's personal life and that of his contemporaries. But far and away the most exciting item was documentation of a previously unknown series of debates held by the framers over the drafting of the Ninth Amendment.

The Ninth Amendment reads as follows: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” It was introduced to allay the concerns that listing a specified set of rights would imply that any right not listed would be left at the mercy of the government. But which rights are so protected? For generations, it has been perhaps the most cryptic and mysterious element of the bill of rights. Robert Bork once referred to it as an “inkblot.” Though few have been quite so disparaging, it has never been entirely clear what activity, if any, was covered by the amendment.

The new documents shed shocking new light on the original intent of the Ninth Amendment. At the urging of Abigail Adams, Rufus King of Massachusetts had questioned whether or not the use of herbal or physical abortifacients would be included among the liberties protected by the amendment. Madison recalled that the question was entirely unexpected by the chamber, but provoked a surprisingly vigorous debate. Caught unawares, Madison assured King that the amendment was meant to be read more narrowly than that, and would not include abortion. But he had miscalculated. The anti-federalist delegates to the convention, for whom the broad protections of the Bill of Rights were critical to guaranteeing their support, immediately expressed their opposition to any “narrow” reading of the amendments. John Dickinson of Delaware protested “if the private, personal decisions of fathers as to whether to bear children is within the province of the state, then the liberties Mr. Madison assures us will be protected [by the amendment] are meaningless.” Several other delegates argued that controlling family size was important to their landed constituents, who did not want their large estates to be broken up among many heirs. Surprisingly, several southern representatives also weighed in support of protecting abortion. “Our economy,” Charles Pinckney argued, “is dependent on being able to predict and utilize the labor of our slaves. We need to be able to control when our women give birth, lest a significant portion of our workforce be render incapacitated at inconvenient times.” Several abolitionist delegates responded with their discontent at any further perpetuation of the slave system, and the ailing Ben Franklin archly replied “or perhaps, Mr. Pinckney, you need to bury proof of some of your fellows’ ‘indiscretions’?” Pinckney began to respond furiously, but Madison, seeing the consensus on the slave issue that had so painstakingly been crafted over the course of the negotiations wavering, interjected.

“Gentleman, the slave issue has already been addressed in the most careful and meticulous fashion in the convention, and we would be wise not to resurrect it now, lest we threaten all the progress we have made thus far. Mr. Franklin, the constitution we have all agreed to here has already conceded that slavery will remain for the foreseeable future. Hopefully, it will begin to abolish itself soon enough. But in the meantime, it has been established that it is up to the slave owners how to treat their property. This, however, is a point wholly separate from the scope of the amendment under consideration.”

“That may be, Mr. Madison,” Alexander Hamilton intervened, “but the remarks by Mr. Dickinson and his esteemed colleagues are not without warrant. How would the government go about barring abortions? Would we seize our pregnant wives and keep them under lock and key until birth? Or would we quarter soldiers in our bedchambers, to insure that nothing untoward occurred?” The reference to the recently approved Third Amendment caused a stir in the chamber, and Madison recounted that between the southern delegation, the considerable number of wealthy representatives who worried about what uncontrolled birthrates would mean for their estates, and the sizable contingent of delegates who were opposed to any significant reduction in the protections of the Ninth Amendment, “nearly every one of my fellows signaled their approval in one way or another.”

“I was honored and privileged to serve in the medical division of the Continental Army,” North Carolina’s Hugh Williamson commented, “but I did not intend for the army to remain on my medical practice’s doorstep for all the nation’s history.”

Trying to prevent the meeting from getting entirely derailed, Madison spoke again “it seems we are all in agreement that the Amendment would protect the choice to abort. But this very discussion, friends, shows the vigor of the proposal. By careful deliberation and discussion amongst our learned fellows, we were able to ascertain the status of this issue and insure its protection. We should be so confident that our successors will be as wise as ourselves, able to make similar determinations so as to protect and defend the rights of the people, enumerated and not.”

* * *

The discovery sent shockwaves through the political establishment. Several conservative politicians immediately labeled it a hoax, but after a dozen historical experts were taken to examine the documents, they unanimously vouched for their authenticity. Pro-choice advocates immediately pounced, using Madison’s notes as proof that the original intent of the bill of rights included protecting the right to abortion. They launched a new wave of litigation to clarify and expand the right, and demanded that their conservative peers, who for so long had insisted that constitutional clauses be interpreted by the original meaning, apply their commitments by publicly affirming Roe v. Wade.

A few conservative law professors, who had staked their professional reputations on promulgating the doctrine of originalism, did just that. But most right-wing politicians and academics balked. Their opposition to abortion, after all, was premised primarily on their belief that it was murder—an absolute moral wrong. Signing on to a constitutional abortion right was simply unconscionable. Several said as much, arguing that any government which allows the murder of unborn children is complicit in monstrous human rights atrocities, and no longer commands the allegiance of its people.

Most anti-abortion activists, however, did not publicly take such an extreme stance. But after a proposed amendment “granting the states the exclusive power to enact any regulation or law governing abortion,” failed to pass Congress, they realized the needed to create new constitutional arguments that would legitimize their preferred policy positions.

Some repudiated originalism entirely. Louisiana’s Republican Senator derided the new-found liberal commitment to originalism, observing that “for decades we were lectured about ‘evolving standards of decency,’ and the ‘living constitution.’ Now we dig up one artifact that affirms the liberal position, and suddenly they’re all about original intent? It’s simply disingenuous, and we should not accept this slight of hand.” A prominent Black Republican seized on the slavery link, arguing that “this acceptance of abortion was done on the backs of my fathers and mothers, designed to control them for master. Who knew the Democratic Party would so enthusiastically embrace the fruits of the slave system?” A few self-described “pro-life feminists” made similar arguments, noting that the prevailing motivation for the delegates was so that husband’s could further control their wives.

Others sought to modify but preserve the originalist doctrine, while still arguing for why it would permit abortion restrictions. Defending its “spousal consent” law against a constitutional challenge, Missouri seized on Dickinson’s reference to a “father’s” choice as to whether to have children as proof that, as originally understood, it was not the women who had the right to choose an abortion, but the father. More abstractly, one professor remarked that “Congress passed the Alien & Sedition Act in the immediate wake of the First Amendment, and today we recognize that as the paradigmatic example of what the First Amendment forbids. Similarly, just because the founders didn’t recognize the way in which they were sacrificing their ideals at the time, doesn’t mean that we are bound to repeat their fallacy.”

Ultimately, very little changed. Liberals won a few victories increasing abortion rights at the margin. But by and large, anti-abortion forces simply re-entrenched elsewhere, finding new legal theories and arguments to justify their old positions. Now, it was liberals pronouncing that the original intent was controlling, and conservatives arguing just as vociferously that a more holistic, evolved outlook was necessary.

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The point of this parable is not to argue that such a debate ever happened, or that this would be its result if it did. The point is to show just how unimportant the "legal" part of the argument is to the anti-Roe crowd. It’s almost purely a handmaiden for policy preferences. Roe could be the most tightly reasoned opinion ever written, a masterful example of every conservative maxim of jurisprudence, and it'd be every bit as controversial as it is today. People don’t pick their legal positions to match their legal theory, they pick their legal theory to match their positions. Certainly, we’re willing to sometimes follow a theory to undesirable outcomes in order to stay consistent. But that moral flexibility has limits, and for most people, those limits aren’t very far out. If adhering to legal principle will lead to genuinely unacceptable outcomes, the principle is what’s going to give. And the underlying factor that sparks most serious public debates about law isn't disputes over legal theory, but disagreements about morality and policy.