The deeply rooted in history test used by Justice Alito in Dobbs v. Jackson to overturn Roe v. Wade is anti-constitutional. In Dobbs, Alito concluded that, because a majority of states in 1868 criminalized abortion, abortion is not deeply rooted in history, and is therefore not a fundamental liberty under the Fourteenth Amendment Due Process Clause. However, relying on state laws in 1868 to interpret constitutional text not only has no basis in the Constitution, it goes against the fundamental nature of the Constitution as an integrated whole. What I call the Integrated Constitution is based on Chief Justice John Marshall’s theory of the Constitution as a great outline. For Marshall, the text of the Constitution must always be interpreted with the whole Constitution in mind, and any interpretation must be rejected if it disrupts the integrated functioning of the Constitution as a whole. Alito’s deeply rooted method of constitutional interpretation does exactly that in multiple ways and must ultimately be rejected by the Court.
First, relying on state laws in 1868 to determine whether the Fourteenth Amendment Due Process Clause restricts state power undermines the core function of the entire Fourteenth Amendment as a systematic and permanent restriction of state power. Second, Alito’s use of nineteenth-century history to interpret due process is in direct conflict with the Court’s use of history to interpret equal protection in well-established equal protection precedent such as Frontiero v. Richardson and Loving v. Virginia. Third, relying on state laws enacted by state legislatures that excluded women and racial minorities from voting and holding elected office is inconsistent with the Fifteenth and Nineteenth Amendments. Fourth, relying on state laws to interpret the federal Constitution subverts the principle of federal supremacy over state laws. Finally, relying on state laws in 1868 to interpret the Constitution turns it into a rigid, predetermined legal code, which is precisely what the Constitution is not meant to be, per Chief Justice Marshall. For all of those reasons, Alito’s use of history in Dobbs is deeply anti-constitutional.
The Anti-Constitutionality of the Deeply Rooted Test in Dobbs v. Jackson,
72 Clev. St. L. Rev.
available at https://engagedscholarship.csuohio.edu/clevstlrev/vol72/iss1/7