Document Type

Article

Publication Date

1-1-2024

Abstract

The Dobbs majority’s reliance on a flawed and impoverished account of “history and tradition” to deny fundamental freedoms today may tempt us to despair of appealing to the past as a source of constitutional rights or principles. But the problem with Dobbs is not its discussion of history per se; rather, it is how and for what purposes the Court looks to the past. History need not preserve archaic values; it can counsel against past errors and justify affirmative approaches to protecting rights and combating inequality. This essay explores critical roles for history in legal, constitutional, and political arguments about reproductive freedom and democracy after Dobbs. These critical approaches define differently the historical voices and sources that matter; the constitutional principles and lessons to be drawn from the past; and the roles that history and tradition should play in shaping our present and future. Critical histories read the Reconstruction Amendments as a mandate for emancipation and for the eradication of all forms of bodily and reproductive coercion. They elevate the voices of those who long were excluded from political participation and place abortion restrictions in a longer history of reproductive control and anti-democratic political traditions. Critical histories can and do inform the interpretation of state as well as federal constitutional provisions in and outside of court. From courtrooms, legislatures, and campuses to workplaces, street protests, and dinner tables, these histories play a more crucial role than ever in informing legal and political discourse about reproductive justice and the future of democracy.

Keywords

Dobbs, reproductive rights and justice, democracy, abortion, history and tradition, equal protection, state constitutions, Reconstruction Amendments, critical histories, constitutional change, fundamental rights

Publication Title

Journal of American Constitutional History

DOI

https://doi.org/10.59015/jach.NXYK8697

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