With Dobbs v Jackson Women’s Health Organization right around the corner, a growing number of conservatives are calling for the destruction of the conservative legal movement should the 6-3 conservative majority fail to overturn Roe v Wade and Planned Parenthood v Casey. While I share their frustrations, I am concerned that too many conservatives will abandon originalism in the process of reforming or blowing up our legal institutions.
At Austin College—where I am currently a senior and a prospective law student—I have taken multiple classes on constitutional law and American political thought. In these classes, I have developed a strong appreciation for the wisdom of our founders. Careful analysis of Federalists 78 and 81, Brutus 11 and 12, and cases like Marbury v Madison, Fletcher v Peck, and McCulloch v Maryland have helped me conclude that the Constitution should be interpreted according to its original intent.
Interpreting the Constitution according to its original intent requires overturning Roe.
Overturning Roe is at the crux of our legal movement. Republican presidents have appointed sixteen out of the last twenty Justices. At least five of the six current conservative Supreme Court Justices are Federalist Society members. Come June 2022, there is no excuse for Roe to still stand with a 6-3 conservative majority on the bench.
Nevertheless, there is still no telling where Chief Justice Roberts and Justices Kavanaugh and Barrett will land in Dobbs. Conservatives are justified in voicing their agitation about the uncertainty surrounding the outcome of this case.
If the justices in Dobbs do not announce a properly originalist opinion, the products of our legal institutions will have failed to do their job in the most critical case of my lifetime.
Should the Supreme Court fail to overturn Roe, a case that leaves little room for legal distortion and manipulation, it is fair to call the conservative legal movement an abject failure. Institutional change will be necessary.
Still, however we choose to reform our institutions, conservatives would be wrong to abandon originalism. Originalism is not the problem.
A proper originalist interpretation of the Constitution again provides no room for upholding Roe and Casey. The idea that a right to privacy can be inferred from the Bill of Rights through a combination of the Fourth, First, Ninth, Third, and Fourteenth Amendments because certain guarantees of the Bill of Rights have emanations from precedent that cast penumbras is utter nonsense.
There is no right to privacy or right to abortion in the constitution. The federalist writer, Publius, the anti-federalist writer, Brutus, and the great Chief Justice John Marshall all believed that the Constitution is the supreme, fundamental, and paramount black-letter law of the land. If we operate under this (correct) assumption, then such attempts to interpret the document according to its “spirit” can only be framed as blatant judicial activism.
This is true even when looked at in light of the Fourteenth Amendment. As Justices Byron White and William Rehnquist write in their Roe dissent, “the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter.”
Rather than abandoning originalism for various forms of conservative judicial activism, conservatives must do a better job of appointing justices who have the chutzpah to adhere to originalism on the issues that matter most.
The views expressed in this article are the opinion of the author and do not necessarily reflect those of Lone Conservative staff.