Bench Memos

Law & the Courts

Originalism, the Right to Life, and Judicial Nominees

Sen. Josh Hawley (R., Mo.) participates in a mock swearing in with Vice President Mike Pence during the opening day of the 116th Congress on Capitol Hill in Washington, D.C., January 3, 2019. (Aaron P. Bernstein/REUTERS)

Senator Josh Hawley (R., Mo.), a member of the U.S. Senate Judiciary Committee, set off a vigorous debate last week when he dared to raise the question of a federal appeals-court nominee’s legal philosophy on the right to life. Though considered by some to be controversial or improper, Hawley’s inquiry was measured, thoughtful, and needed.

It’s an important and legitimate inquiry for several reasons. The “right to life” is not code for abortion. It encompasses many other legal and constitutional issues. It touches on governmental support for assisted suicide, embryo research, infanticide, genetic manipulation of developing human beings, and other threats to the equal dignity of human beings. And technology and culture will continue to raise bioethical issues.

It’s administration policy and Republican-party policy. The president promised during the 2016 campaign to appoint “pro-life judges.” The vice president said during the 2016 campaign that the administration would “overturn Roe v. Wade.” Support for “pro-life judges” has been a consistent part of the Republican-party platform since Ronald Reagan was the party’s nominee in 1980, when the platform declared that “we will work for the appointment of judges at all levels of the judiciary who respect . . . the sanctity of innocent human life.

It’s also a proper textualist inquiry. The constitutional protection of “life” is right there in the Fifth and Fourteenth Amendments. The Declaration of Independence forthrightly affirms the right to “life.” And prior to and since his confirmation to the Supreme Court, Justice Thomas has drawn an interpretative connection between the Declaration of Independence and the Constitution.

It is a proper originalist inquiry. The U.S. has a legal heritage supporting the protection of human life going back to the common law. Justice James Wilson, one of the original set of justices nominated to the Court by President George Washington, wrote in the 1790s:

With consistency, beautiful and undeviating, human life, from its commencement to its close, is protected by the common law. In the contemplation of law, life begins when the infant is first able to stir in the womb. By the law, life is protected not only from immediate destruction, but from every degree of actual violence, and, in some cases, from every degree of danger.

The Constitution drew upon that common-law tradition and the Declaration when it prohibited Congress from “depriv[ing]” a person “of life . . . without due process of law” in the Fifth Amendment. After the Civil War, the Fourteenth Amendment extended that prohibition to the states. As a former law professor and Missouri attorney general, Hawley is well-positioned to raise these issues and the implications for the states.

The right to life isn’t reduced to Roe v. Wade. Despite Roe, the federal and state governments continue to enact legislation that protects the right to life. The states have increasingly enacted limits on abortion and enacted affirmative legal protection of the unborn child from conception through prenatal-injury, wrongful-death, and fetal-homicide laws.

Giving content to the constitutional protection of life will be an important jurisprudential question for years to come. The exact content of the right to life in the Fifth and Fourteenth Amendments has been given too little attention by judges and legal scholars. If, in response to the question “What does the right to life mean in the Fifth and Fourteenth Amendment?” a nominee answered, “The Court has answered that question in Roe v. Wade,” it would reveal a shallow understanding. Roe did not occupy the entire content of the constitutional protection of human life.

The criticism of Senator Hawley’s inquiry is unfounded. It’s inconsistent, for example, to praise a judicial nominee for a “policy” position such as administrative deregulation but to say that all other “policy” positions are out of bounds during the confirmation process. The right to life is part of the Constitution’s text and cannot be dismissed as mere “policy.” Isn’t the content of all constitutional provisions a proper scope of inquiry of a federal judicial nominee?

Senator Hawley laid out a thoughtful starting point with three lines of inquiry: judicial approval of state protection of life, the expansion of erroneous judicial precedent, and the future of “substantive due process.” Senator Hawley has set a standard for other Republican senators by his honest and principled concern that federal judicial nominees possess a pro-life legal philosophy, and he’s started an inquiry that should continue if our Constitution, in all its provisions, is to be effectively enforced by the judiciary. If senators can properly and publicly look for an “originalist” philosophy in judicial nominees, they can look for a “right to life” philosophy as well.

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