Was Dobbs an originalist opinion? Did it abandon originalism for "history and tradition"? Or did the Court's history show originalism itself to be fatally flawed?
I'd say "yes," "no," and "of course not." To that end, I've got a new paper, forthcoming in the Harvard Journal of Law & Public Policy, defending Dobbs on originalist grounds. It's short—18 pages!—and tries to get the point across quickly. From the abstract:
Though often hailed as an originalist triumph, Dobbs v. Jackson Women's Health Organization has also been condemned as an originalist betrayal. To some, it abandoned originalism's principles in favor of a Glucksbergesque history-and-tradition test, or even a "living traditionalism"; to others, its use of originalism was itself the betrayal, yoking modern law to an oppressive past.
This essay argues that Dobbs is indeed an originalist opinion: if not distinctively originalist, then originalism-compliant, the sort of opinion an originalist judge could and should have written. Dobbs shows the importance of looking to our original law—to all of it, including lawful doctrines of procedure and practice, and not just to wooden caricatures of original public meaning. As the case was framed, the Court's focus on history and tradition was the correct approach; on the evidence presented, it reached the correct originalist result. Understanding the Fourteenth Amendment as securing old rights, rather than as letting judges craft new ones, leaves more rather than fewer choices for today's voters. In any case, it may be the law we've made, both in the 1860s and today.
