This Article recommends a shift in constitutional interpretation that requires the existence of respect for the class at issue when a fundamental right is being considered under the narrow, historical deeply rooted test of the Fourteenth Amendment. By focusing on Dobbs v. Jackson Women’s Health Organization, this Article highlights that the class at issue—women—are having their fundamental rights decided for them by the legal sources of 1868. In applying this strict and narrow historical deeply rooted test, the Court fails to consider the lack of respect and autonomy that women had in 1868. To the Court, if twenty-eight out of thirty-seven states criminalized abortion in 1868, then their decision is clear today. This simple arithmetic as the means to determine the character of our constitutionally protected, fundamental rights is exactly what Justice Harlan warned us of in his dissent of Poe v. Ullman. In Poe, Justice Harlan explained how history and tradition is a “living thing,” not a “formula.” Inspired by Justice Harlan’s dissent, this Article aims to course correct the formulaic process the Court has adopted. By implementing this Article’s respect-conscious deeply rooted test, history can be considered as a means of interpretation without thwarting this Nation’s growth.
R.E.S.P.E.C.T.: The Court's Forgotten Virtue,
72 Clev. St. L. Rev.
available at https://engagedscholarship.csuohio.edu/clevstlrev/vol72/iss1/8