Last summer I wrote about Mary Ziegler's exciting article on the constitutional ideas of the anti-abortion movement in the 1970s. I called the blog post "Bumper Sticker Popular Constitutionalism" to make the point that the constitutional arguments were, well, rather thin. (Sort of what you see on bumper stickers). Now Ziegler has followed up that article with an in-depth look at the shift made in the anti-abortion movement from its sort of pluralism of constitutional arguments against abortion (like a nineth amendment focus on the rights of fetuses) to a laser-like focus on originalism. This shift tracks, unsurprisingly, the shift in the larger world towards originalism in the late 1970s and early 1980s. Here is the abstract for Ziegler's article, "Originalism Talk: A Legal History":
Progressives have long recognized the tremendous political appeal of originalism: it achieves results consistent with conservative values but promises the public judicial neutrality. By drawing on new historical research on antiabortion constitutionalism, this Article argues for a radically different understanding of the originalist ascendancy. Contrary to what we often think, conservative social movements at times made significant sacrifices in joining an originalist coalition. These costs were built in to what this Article calls originalism talk — the use of arguments, terms, and objectives associated with conservative originalism.
Scholars have documented the costs confronted by social movements reliant on rights-based rhetoric, particularly when activists seek social change in the courts. Originalism talk was similarly constraining. By becoming part of an originalist coalition, abortion opponents increased their influence over the selection of federal judicial nominees. At the same time, in stressing originalist rhetoric, abortion opponents had to set aside longstanding constitutional commitments involving the right to life, the personhood of the fetus, and the existence of rights based in natural law or human-rights principles.
The story of antiabortion constitutionalism offers insight into progressive attempts to create a doctrinally satisfying and politically resonant alternative to conservative originalism. Often, the issue is how to create an interpretive method that accomplishes as much as originalism: advancing progressive constitutional beliefs while appealing to the public’s interest in the rule of law. As this Article shows, however, it is not clear that the benefits of belonging to the originalist coalition outweigh its costs.
This is exciting because it suggests that there were costs involved in the shift away from non-originalist, living constitution arguments. (I used a bumper sticker that makes appeals to human rights, rather than constitutional arguments, to make the case against abortion. I was having trouble finding the one I really wanted to use, which directly linked slavery and abortion.) I don't think there's been any attention to that part of the originalism movement. But this makes me wonder about two things. First, does the power of originalism (and the readiness of the anti-abortion movement to abandon living constitution arguments) suggest the limitations of non-originalist arguments? I mean, if the non-originalist arguments had traction, why were they given up so easily? Second, and closely related, I wonder how committed the anti-abortion movement was to any of these arguments? This is an issue that could be raised about anyone who uses constitutional arguments, of course -- and often is raised about them. Third, at the end of the article Ziegler suggests that abortion opponents lost something by the turn to originalism because they had to abandon rights talk. I wonder about this because the rights talk could certainly continue, just not in the same "constitutionalized way" it had before the turn to originalism. That is, there could easily be talk of the rights of fetuses, just not from the perspective of a broadly construed constitutional right of fetuses. In fact, I have two bumper stickers to prove my hypothesis! Here's one that links abortion and slavery -- and another that critiques the Supreme Court's conclusion that fetuses are not people entitled to rights by comparison to Dred Scott.
At any rate, I think that Ziegler's article is a further sign of the growing sophistication we have about public constitutional arguments. I always approach public constitutionalism first from the perspective of the old South, which is the data set I know best. It seems to me that we are really making a lot of progress in understanding the contours of the public constitutional arguments, who's making them, and how they're responded to in the public, political, and judicial arenas. And I think this is a sign that legal academics are increasingly realizing that we need to take account of public constitutional arguments, for they change the framework in which judges, as well as the rest of us, operate.
Ok--now back to thinking about the constitutional significance of the pre-Civil War cemetery dedication addresses.
The bumper sticker I used to illustrate the post is available at zazzle.com
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