The federal courts, from the Supreme Court on down, are packed with conservative jurists who claim to be faithful to the Constitution’s text and history.  But all too often conservative judges who tout their originalist credentials practice a selective form of originalism that consistently turns a blind eye to the Constitution’s amendments that guarantee fundamental rights, mandate equal protection, and broadly secure equal citizenship.  Much of the time they practice what we at CAC call fauxriginalism.  

A textbook illustration of this comes from the Sixth Circuit’s recent 9-7 ruling in Preterm Cleveland v. McCloud, in which a sharply divided en banc Sixth Circuit upheld an Ohio law that prohibited physicians from performing an abortion if the patient sought to obtain an abortion because the fetus had been diagnosed with Downs Syndrome.  The majority upheld the statute, flouting binding Supreme Court precedent that holds that states may not deprive individuals of the decision whether to terminate a pregnancy prior to fetal viability.  Judge John Bush, who was appointed to the bench by President Donald Trump, went further, suggesting bans on abortions were consistent with the text and history of the Fourteenth Amendment.  Judge Bush’s concurring opinion sought to offer an originalist theory, the logic of which would lead to overturning nearly fifty years of Supreme Court precedent protecting the constitutional right to choose abortion.  

Judge Bush’s concurring opinion took the position that the Fourteenth Amendment’s Due Process Clause does not protect substantive fundamental rights at all.  Yet stunningly Judge Bush reached this conclusion without any discussion at all of the Fourteenth Amendment’s text or history.  Rather than grapple with the actual record amassed during the debates leading to the ratification of the Fourteenth Amendment, Judge Bush cherrypicked contemporary scholarly literature, pointing to a handful of conservative academics who have, according to Judge Bush, claimed that the Due Process Clause did not protect fundamental rights from state infringement.   

Judge Bush’s opinion suffers from at least one small problem and one big problem.  The small problem is that some of the scholars cited by Judge Bush have already pushed back on his opinion, suggesting Judge Bush misread the work he cited.  The big problem is that the historical record is overwhelmingly contrary to the conclusion he reached in his opinion: in fact, the Fourteenth Amendment was designed to ensure that states respected substantive fundamental rights.   

As CAC has shown in numerous briefs and other publications, the Fourteenth Amendment was crafted against the backdrop of the suppression of fundamental rights in the South.  The Fourteenth Amendment, as its proponents proclaimed time and again, sought to protect fundamental liberties that had long been denied to Black Americans.  Many of these were rights that were explicitly enumerated in the Bill of Rights—such as freedom of speech, the free exercise of religion, and the right to be secure from unreasonable searches and seizures—but others were not to be found elsewhere in the Constitution’s then-existing text.  For example, the Framers of the Fourteenth Amendment recoiled at the treatment of enslaved families—women were forced to bear children, parents were denied the right to marry and often separated, and children were taken from them—and they wrote the Fourteenth Amendment to protect the full scope of liberty, guaranteeing basic rights of personal liberty and bodily integrity to all.  In short, there is no originalist case for denying the right to choose abortion.   The right to choose abortion flows logically from the substantive fundamental rights the Fourteenth Amendment was designed to protect.    

There is, of course, room to debate how the Fourteenth Amendment protects fundamental rights.  Quite likely, the Due Process Clause would not have played the role it has but for the fact that the Supreme Court essentially wrote the Privileges or Immunities Clause out of the document just a few years after its ratification.  But what cannot be seriously debated is that the historical record shows that the original meaning of the Fourteenth Amendment protects substantive fundamental rights, including rights of heart and home not found elsewhere in the four corners of the document.  Judge Bush simply ignores this history.      

Next, Judge Bush’s concurring opinion claims that abortion bans are consistent with the original meaning of the Fourteenth because some supporters of the Fourteenth Amendment also favored harsh limitations on access to abortion.  Judge Bush goes badly astray here as well.  As originalists of all ideological stripes have argued, proper interpretation of the Constitution turns on the meaning of the text, not the particular subjective expectations of the lawmakers in Congress or in the states at the time of ratification.   An example helps illustrate the point.  Criminal prohibitions on interracial marriage were in force at the time of the ratification of the Fourteenth Amendment, but they violate the Fourteenth Amendment because, as the Supreme Court held in Loving v. Virginia, they deny Black persons the fundamental right to marry and instead treat them like second-class citizens. Such prohibitions violated the text of the Fourteenth Amendment in 1868 just as they did when the Court finally recognized that fact nearly 100 years later, in 1967. An originalist judge must ask whether limitations on abortion are consistent with the Fourteenth Amendment’s guarantee of fundamental rights and equal protection of the laws.  That inquiry cannot be avoided simply because abortion bans existed at the time of the Fourteenth Amendment.   

Some conservatives have hailed Judge Bush’s opinion as a promising example of originalism in the lower courts.  But a judge cannot claim to be an originalist without actually engaging in careful consideration of the Constitution’s text and history.  On that score, Judge Bush’s opinion fails spectacularly.