Tang on Lessons From Lawrence: How "History" Gave Us Dobbs--And How History Can Help Overrule It @AaronTangLaw @UCDavisLaw @YaleLJournal

Aaron Tang, University of California, Davis, School of Law, is publishing Lessons From Lawrence: How "History" Gave Us Dobbs—And How History Can Help Overrule It in volume 133 of the Yale L. J. Forum (2023). Here is the abstract.

Dobbs v. Jackson Women’s Health Organization is not the first time the Supreme Court has relied on dubious history to deny a constitutional right of profound importance. When the Court rejected what it described as the right of “homosexuals to engage in acts of consensual sodomy” in Bowers v. Hardwick, it did so based on disputed historical claims about criminal sodomy laws in early America. Indeed, when the Court later overruled Bowers in Lawrence v. Texas, it openly confessed that Bowers’s “historical premises are not without doubt and, at the very least, are overstated.” This Essay explores three important lessons that reproductive justice advocates can learn from how Lawrence used history to discredit Bowers. First, Lawrence shows that Dobbs is vulnerable to overruling because it, like Bowers, rests on faulty historical premises, including (but hardly limited to) Dobbs’s self-proclaimed “most important historical fact” that 28 out of 37 states banned abortion throughout pregnancy as of the Fourteenth Amendment’s enactment. Second, Lawrence suggests that these historical errors should undermine any claim Dobbs might make to stare decisis treatment. Finally, Lawrence reveals history’s limited utility in modern constitutional disputes. The problem with Dobbs’s dubious history, Lawrence teaches, is not that it represents the misapplication of a tractable test. The problem is that the history-and-tradition test Dobbs purports to apply is often deeply underdeterminate.

Download the article from SSRN at the link.

Solum on The Public Meaning Thesis: An Originalist Theory of Constitutional Meaning @lsolum @BULawReview

Lawrence B. Solum, University of Virginia School of Law, is publishing The Public Meaning Thesis: An Originalist Theory of Constitutional Meaning in volume 101 of the Boston University Law Review (2021). Here is the abstract.

Public Meaning Originalism is the predominant form of constitutional originalism. What makes Public Meaning Originalism distinctive is the Public Meaning Thesis—the claim that the best understanding of constitutional meaning focuses on the meaning communicated by the constitutional text to the public at the time each constitutional provision was framed and ratified. This Article provides a precise formulation of the Public Meaning Thesis, supplies reasons for affirming the thesis, and answers objections. The constitutional record strongly supports the claim that the constitutional text was intended to communicate to the public. The Constitution begins with “We the People” and the ratification process included intense popular participation. Jurists and scholars emphasized the public nature of the Constitution. The communication of public meaning is made possible by two features of constitutional communication. The first of these features is a shared language: the drafters of the constitutional text could rely on the fact that American English was spoken by most Americans and was accessible via translation to those who spoke German and Dutch. The second feature is a shared public context of constitutional communication: the drafters could rely on widely shared understandings of the circumstances in which the Constitution was framed and ratified. These features enable the creation of public meaning. Common objections to the Public Meaning Thesis, including the “summing problem,” are based on mistaken assumptions about the way linguistic communication works. In sum, the central claim of the Article is that Public Meaning Originalism provides the best understanding of original meaning and hence the most attractive form of originalist constitutional theory.

Download the article from SSRN at the link.