Related to my previous post on the en banc Sixth Circuit’s order allowing two provisions of Tennessee abortion law to take effect:
The Texas Review of Law & Politics has just published my article praising Judge Amul Thapar’s separate panel opinion (concurring in part and dissenting) as “an outstanding example of his originalist craftsmanship.” Here are some excerpts from my article (the time frame of which reflects that I wrote it months before last week’s ruling in Dobbs):
Thapar’s stature as a prominent originalist is itself a testament to the transcendent appeal of originalism as a methodology of constitutional interpretation. The son of working-class immigrants from India, Thapar was born and raised in the heartland of America, Michigan and Ohio. The love for this country and its founding principles that his parents instilled in him is illustrated by his mother’s decision, in the aftermath of the 9/11 attacks, to close her successful restaurant business and dedicate herself to helping military veterans adjust to civilian life. In response to a colleague’s charge that many Americans want to shut our borders “to all potential immigrants who are not blond-haired and blue-eyed,” Thapar replied that “as someone who is neither blond-haired nor blue-eyed and who has benefited directly from the kindness of the American people, I believe that the American Dream is alive and well for persons of all stripes.” …
Drawing on a broad range of sources, [Judge Thapar] provides a clear, compelling, and comprehensive account of how the Supreme Court’s abortion precedents in Roe and Casey are “wrong as a matter of constitutional text, structure, and history.” He also depicts the damage that they have wreaked on the law. As the Supreme Court decides Dobbs v. Jackson Women’s Health Organization, Thapar’s opinion provides forceful support for overruling Roe and Casey….
Thapar launches his originalist analysis by setting forth what public-meaning originalism entails. The meaning of a constitutional provision “is fixed when it is enacted and does not change unless the [Constitution] itself has been changed.” Courts determine this original meaning “by looking to the Constitution’s ‘text, structure, and original understanding’”—in other words, “by asking what a reasonable reader at the time of ratification (the intended audience) would understand the Constitution’s text to mean in light of the Nation’s history and legal backdrop.”…
As Thapar points out, there is no constitutional text, in the Fourteenth Amendment or elsewhere, that “explicitly provides a right to abortion.” Nor can such a right be said to be “deeply rooted” in our nation’s “history, legal traditions, and practices.” The Roe majority’s claim to the contrary badly “rewrote history” by relying heavily on the shoddy, and now thoroughly discredited, scholarship of abortion proponent Cyril Means. As Thapar discusses in detail, Means was flatly wrong to contend that abortion at common law “was not an offense of any kind, no matter at what stage of gestation it was performed.” On the contrary, abortion was a criminal offense at common law, at least from quickening (when the unborn child’s life could first be discerned), even if evidentiary challenges often prevented prosecution. And even if the common law, in light of the primitive state of embryology, did not forbid abortion before quickening, that would not mean that abortion was “affirmatively protected” as a right.