17. The Time Machine Constitution
How Dobbs Made 1868 the Measure of Modern Rights
Justice Alito’s majority opinion in Dobbs applied a deceptively simple test: For the 14th Amendment’s Due Process Clause to protect a right, that right must be “deeply rooted in the Nation’s history and tradition,” specifically at the time of the amendment's ratification in 1868.
The Historical Evidence: Alito marshaled impressive historical documentation:
By 1868, three-quarters of states had criminalized abortion
English common law treated post-quickening abortion as criminal
Legal treatises from the era described abortion as “proto-felony-murder”
No historical tradition protected reproductive choice
The Logic: If the 14th Amendment’s framers lived in a world where abortion was widely criminalized, they couldn’t have intended to constitutionally protect abortion rights. The amendment's meaning is fixed by its historical context.
The Broader Principle: Constitutional rights don't evolve—they’re determined by what was legally and socially accepted when the relevant constitutional text was adopted.
This wasn’t just about abortion. It was a methodological earthquake that affects how courts approach all unenumerated rights.
The Conservative Celebration: Finally, Constitutional Restraint
Conservative legal scholars and commentators largely praised Dobbs' historical approach as long-overdue constitutional course correction.
The Originalist Victory: For decades, conservative legal thinkers have argued that liberal judges “invent” rights by reading modern values into old constitutional text. Dobbs represented the triumph of originalism—constitutional interpretation based on original meaning rather than evolving values.
The Judicial Restraint Argument: By anchoring rights in historical practice, Dobbs prevents unelected judges from imposing their policy preferences. As Justice Alito wrote, the Constitution requires rights to be “deeply rooted”—not whatever five justices think sounds reasonable.
Historical Integrity: Conservative defenders argued that Roe had “ignored or misstated” abortion’s legal history. Dobbs corrected the historical record, showing that abortion was never historically protected. Constitutional interpretation requires historical honesty, not wishful thinking about the past.
The Anti-Casey Point: Planned Parenthood v. Casey exemplified everything wrong with liberal constitutional interpretation—flowery language about “defining one’s own concept of existence” without any basis in constitutional text or history. Dobbs restored constitutional interpretation to solid historical ground.
This perspective sees Dobbs as constitutional restoration: returning to proper interpretive methods after decades of judicial activism.
The Progressive Alarm: Constitutional Fundamentalism
Liberal scholars and commentators responded to Dobbs’ historical methodology with a mixture of scholarly criticism and political alarm.
The Frozen Constitution Problem: The dissent captured this concern perfectly: the majority’s approach “freezes constitutional rights in the past.” Constitutional interpretation that relies exclusively on 1868 understanding makes the Constitution incapable of addressing modern realities.
The Exclusion Problem: As the dissent noted, “the ratifiers—both in 1868 and when the original Constitution was approved in 1788—did not understand women as full members of the community embraced by the phrase ‘We the People.’” Why should an all-male, racially exclusive legal system determine modern women’s rights?
Historical Cherry-Picking: Liberal critics argued that Dobbs selectively used historical evidence. Some historians note that abortion was more common and less uniformly criminalized in early America than Alito acknowledged. The majority ignored evidence that many 1868 abortion laws targeted providers, not women, and were motivated by medical safety rather than fetal protection.
The Precedent Problem: If historical practice from 1868 determines constitutional rights, what happens to other modern precedents? Interracial marriage wasn’t widely accepted in 1868. Neither was same-sex intimacy, contraception access, or many other rights the Court has recognized.
The Scholarly Divide: Historians Weigh In
Professional historians found themselves thrust into constitutional debate as legal scholars scrutinized Dobbs’ historical claims.
Historians Supporting the Majority: Some historians confirmed Alito’s basic narrative. By the mid-1800s, most states had indeed criminalized abortion, representing a significant shift from earlier, more permissive attitudes. The legal trend was clearly toward prohibition, not protection.
Historians Questioning the Majority: Other historians argued that Dobbs oversimplified a complex historical record:
Early American abortion law was more varied than Alito suggested
Many laws targeted practitioners, not women seeking abortions
Medical safety, not fetal rights, motivated many restrictions
Common law traditions were more nuanced than the majority acknowledged
The Methodological Problem: Several historians criticized the Court’s historical methodology itself. Constitutional interpretation, they argued, requires understanding not just what laws existed, but why they existed, how they were enforced, and what they meant to people at the time.
The Uncomfortable Implications: Where Does Historical Originalism Lead?
Both conservative and liberal scholars began recognizing that Dobbs’ historical methodology has implications neither side fully anticipated.
Rights That Might Not Survive the 1868 Test:
Contraception (Griswold v. Connecticut): Comstock laws criminalized contraception information in the 1870s
Interracial marriage (Loving v. Virginia): Anti-miscegenation laws were widespread in 1868
Same-sex intimacy (Lawrence v. Texas): Sodomy laws were universal in 1868
Marriage equality (Obergefell v. Hodges): Same-sex marriage was inconceivable in 1868
The Thomas Concurrence: Justice Thomas made this logic explicit, calling for reconsidering “all of this Court's substantive due process precedents.” If Dobbs’
historical test is consistently applied, much of modern constitutional rights doctrine becomes vulnerable.
Conservative Concerns: Some conservative scholars worried that Dobbs went too far. They supported originalist constitutional interpretation but feared that rigid application of the 1868 test might eliminate settled rights that conservatives now support, like interracial marriage.
Liberal Predictions: Progressive scholars saw Dobbs as the opening move in a broader campaign to roll back civil rights progress. The decision’s logic, they argued, threatens any right not explicitly protected in constitutional text.
The International Perspective: How Other Democracies View Constitutional History
Dobbs’ approach to constitutional history stands out internationally. Most democratic constitutions are interpreted to evolve with social understanding, rather than being frozen at historical moments.
The Canadian Approach: Canada’s Charter of Rights is explicitly interpreted as a “living tree” that grows and adapts to modern circumstances.
The European Model: European human rights law evolves through ongoing interpretation that considers contemporary values alongside historical text.
The American Exception: Dobbs moves American constitutional law toward historical fundamentalism that’s increasingly rare among developed democracies.
What This Means for Constitutional Law's Future
Dobbs’ historical methodology represents more than abortion law—it’s a blueprint for constitutional interpretation that could reshape American rights for decades.
If Consistently Applied: Many rights Americans take for granted could be eliminated if courts consistently apply the 1868 test.
If Selectively Applied: The Court risks appearing partisan—protecting some rights while eliminating others based on political preference rather than constitutional principle.
The Legitimacy Question: Either approach threatens the Court’s legitimacy. Consistent application might eliminate popular rights. Selective application might confirm suspicions that constitutional interpretation is just politics by other means.
The Deeper Question: What Kind of Constitution Do We Have?
Dobbs forces a fundamental question about American constitutional democracy: Should constitutional rights be determined by historical practices from past eras, or should they evolve with democratic understanding of human dignity and equality?
Both sides claim to defend democracy, but they define it differently. Originalists see evolving constitutional interpretation as anti-democratic judicial supremacy. Living constitutionalists see frozen constitutional interpretation as anti-democratic minority rule by the past.
Dobbs didn’t resolve this tension—it sharpened it.
That concludes our three-part series on Dobbs v. Jackson Women’s Health Organization. From the decision’s immediate impact to its approach to reliance and historical interpretation, we’ve seen how a single case can reshape entire areas of constitutional law.