Ideological Strife, The Test

Dobbs v. Jackson Series: Article 2

Ideological Strife, The Test

By now, you have heard that one of the most critical cases of the century, Roe v. Wade, has been overruled by what will almost certainly be one of the most important SCOTUS rulings of our time, Dobbs v. Jackson. However, after this ruling, many people are left wondering: what exactly does this mean, and why did it happen?

In this article, an experienced Counxel attorney will explore the Dobbs decision, the two ideologies that have been dueling for control of constitutional jurisprudence for two generations, and how that duel was resolved in June 2022 with the decision itself.

A Tale of Two Ideologies

I have used the phraseology “fundamental right” several times in this series. But what exactly is that? Where do fundamental rights come from, and how are they recognized?

It probably won’t surprise you to know that there are many different, competing theories to answer those questions. When one wants to know what “abortion as a fundamental right” means, one needs to know with what ideological lens a jurist views the question and with what lens they view that question.

Progressive or Living Constitutionalism

Two constitutional interpretation theories have been dueling for generations’ supremacy in the Supreme Court.

The first theory of constitutional interpretation, a progressive ideology, is the living constitution. This means that the Constitution is meant to be constantly amended, read, and interpreted in a fashion that comports with popular views of the time. Moreover, it believes that addition, fundamental rights are ever-evolving. 

Progressive Constitutionalism traces its origins to the early 20th century, primarily in cases during and shortly after the Great Depression and the New Deal. Progressive constitutional jurisprudence is a pragmatic view: that the Court listening best serves democracy to the pulse of the time. Rulings tend to be made in ways that serve the supposed concepts of the Constitution, such as liberty and justice. Progressive constitutionalism seeks to expand peoples’ rights at almost every possible turn. New liberties are declared as society believes that people should be free to do new things. These rulings are grounded in appeals to the concepts of the Constitution.

A justification that progressive constitutionalists often provide for the claimed purview to expand liberties is that the Constitution itself is silent regarding how this is meant to be interpreted. However, the fact that the Supreme Court interprets the Constitution and declares the law is itself a product of one of the first cases it ever decided: Marbury v. Madison. In this case, the Court claimed the power of judicial review that was not explicitly granted in the Constitution.


Originalism is the second theory of constitutional interpretation, which has been gaining acceptance since the 1980s. Originalism broadly holds that the Constitution is to be interpreted in light of what it meant when it was written.

To an Originalist, fundamental rights are static. We have rights as outlined in the documents that exist. The Originalist allows for the legislature to create further rights. Most rights are not fundamental, and they must comport with the Constitution. 

Originalism means original intent. Meaning the words of current laws should comport with the intent of past lawmakers. If a law comports with the intent of the Framers, it’s constitutional. If it does not, then it is not constitutional. Sometimes this means that the words in current laws are read with the meanings common to the late 1700s. The broad point is that if current law does not “fit” within the original meanings of the Constitution (whatever those may be specifically), it is scrapped.

The Duel

Why does this matter in the context of the abortion discussion? 

In 1973, the Court was dominated, to a greater or lesser degree, by living constitutionalists. The Court saw the chaos of state laws restricting something in a way that they did not believe comported with the morals and values of the time, and they changed the law to comport with what they believed. 

The Supreme Court in 2022 is different and is now composed primarily of Originalists. The immediate and apparent reason for that composition is because President Trump was able to make three picks for Justices of the Court. 

Ideologically, the crop of available candidates was Originalists, to a greater or lesser degree. Originalist thought has become the orthodoxy in conservative jurisprudence circles and institutions. Originalists and Progressives were available, but Trump could not pick a Progressive for political reasons, and Originalists were chosen to fill the vacant seats.

The Glucksberg Test

Originalists have stated that they intend to subject any law identified for constitutional review to the Glucksberg test. The Glucksberg Test was devised in a 1997 case, Washington v. Glucksberg.

It was held that any proposed “liberty interest” that was not “deeply rooted in the nation’s history and traditions” or “implicit in the concept of ordered liberty” was simply not a constitutional right. Of course, it may be a subsidiary right granted by the state or federal legislature. Still, such a subsidiary right is not a fundamental right, and thus any attempt by governments to curtail such a right is subject to a much lower burden of scrutiny. 

The Originalist majority on the Court subjected the fundamental right to abortion, promulgated by Roe and clarified by Casey, to the Glucksberg test. They found that before 1973 abortion was regulated solely by the states and decided that the fundamental right the Roe and Casey Courts recognized did not exist. 

The specific law that brought the case before the Supreme Court, a Mississippi law, prohibiting abortion past a certain threshold of weeks, was immaterial. Because abortion was not a fundamental right, the state only had to articulate a rational basis, and, given the state’s compelling interest in population, the rational basis was met.

Dobbs v Jackson: The Majority and the Dissent

*In this section, the Opinion is referring to the court’s written statement explaining the court’s decision for the case of Dobb v. Jackson. The Majority refers to the Justices that voted in favor of overruling Roe v. Wade and the Dissent refers to the Justices that did not. 

The dispute between the Majority and the Dissent, in the body of the Opinion in Dobbs v. Jackson, reads as a textbook argument between a Progressive and an Originalist. 

In the Opinion, the Majority points out that the Dissent admits that the Constitution does not explicitly mention abortion and that abortion was criminal at common law in almost every case before Roe. The Dissent states that constitutional tradition “cannot be captured whole at any one moment” and that the meaning of the Constitution “gains content from the long sweep of our history.” Which the Majority points out is a vague formulation that provides no restraints on what the Court may do. They argue that even under the preliminary test proposed by the dissent, abortion is not a fundamental right because of the long tradition of its regulation.

The most concrete argument that the Dissent makes is one based on precedent, stare decisis. The Dissent, which is not unheard of in Supreme Court opinions, argues that even if Roe was wrongly decided, it has been too long, and too much of the modern legal landscape hinges on its holding. Overturning Roe presents too great of a risk and shouldn’t be overruled because of what it establishes as a stable precedent. 

The Majority disagrees. The Majority points out that precedent is not an inexorable command and that many, just as foundational precedents, have been overturned when it was determined that they were “wrongly decided from the start.” The Majority has little time or patience for such consequentialist arguments when Originalist logic requires a conclusion. The Majority delivers that conclusion. 

Finally, the Majority takes some pains, though concurrences to it offer doubts to the sincerity of those pains, that Dobbs does not endanger other unenumerated, supposedly fundamental rights.

What's Next

Our next article will discuss the substantive due process, how the Originalist Court interprets the idea, the decision itself, and what may follow. 

This article was written by an experienced legal counselor at Counxel Law Firm. We hope to provide clarity and context for the current ruling of Dobbs v. Jackson. For any other legal questions, please contact Counxel at 480-536-6122.

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