In “The Critical Role of History After Dobbs,” published in the Journal of American Constitutional History, Serena Mayeri, Arlin M. Adams Professor of Constitutional Law and Professor of History, critiques the current Supreme Court majority’s “history-and-tradition” methodology and offers a very different vision of history’s role in constitutional interpretation.
The majority opinion in Dobbs v. Jackson Women’s Health Organization (2022), she argues, relies upon a flawed, inconsistent, and results-driven historical methodology to deny fundamental freedoms. The majority counts how many states banned abortion in 1868—a time when women and people of color were excluded from the polity—as the measure of whether Americans have a constitutional right to reproductive autonomy today.
Mayeri contends that champions of reproductive rights and justice should not give up on history as a valuable resource for legal and political argument, however. Instead of preserving archaic values, she writes, history can play a critical role in constitutional interpretation and in our understanding of the present.
She writes, “History can counsel against past errors and justify affirmative approaches to protecting rights and combating inequality.” Abortion bans, Mayeri shows, are part of a longer history of reproductive control and of anti-democratic political movements. That history, she argues, should inform our interpretation of the constitution and aspirations for our collective future.
Read more at Penn Carey Law.
