NOTE: This post was originally published at my Substack. The footnote links go there instead of to the bottom of the page.
The formal announcement of Juneteenth.
I am very fond of Juneteenth, the holiday when we celebrate the Union’s announcement to the very last Confederate slaves they were “then, thenceforward, and forever free.” (The 13th Amendment would bring a final end to slavery in the border states six months later.) Now that it is a federal holiday, I am trying to commemorate it.
A dozen years ago, I wrote a poem to mark the day. I still think that it is probably the best poem I have written. However, I am not any good at poetry, so my best poem is still not necessarily a good poem. (Rest assured, poetry will not become a regular feature at De Civitate.) Nevertheless, I want to commemorate the holiday—especially this year, especially this month. (Either you know why, or you don’t.) So here goes:
Juneteenth
The morning after the celebrations,
We step outside to begin the long work
And the longer.
The long, of course, is the job of cleaning up the blood.
Long, yes, but not hard. It’s just a question of how many
silk pocket handkerchiefs. (Quite a few, soon red.)
NOTE: This post was originally published at my Substack. The footnote links go there instead of to the bottom of the page.
Speaker Chubbycheeks (R-Toyland) of the Congressional Baby Caucus
Welcome to all De Civitate’s new subscribers. I’m glad you’re here. Since my last thing was about The Law, I thought maybe I should do another Law post to settle everybody in before I get eclectic and do a post about The Orville: New Horizons or something. So!
While there are many, many contenders, this is my pick for the silliest argument for against fetal rights:
Yes, of course, obviously, we should be able to claim all our kids on our taxes.
Congress allows taxpayers to deduct certain income and take certain credits if they have children who are dependents. Congress has chosen to do this because parenting is difficult, exhausting, expensive, and potentially dangerous. Unlike a mere hobby, however, the bearing and raising of children benefits all of society. Parenting not only creates an entirely new and unique human being, infinitely valuable and inherently dignified, treasured by every code of human rights from the Constitution to the Universal Declaration; parenting also creates a future taxpayer, consumer, and citizen. We need a great many of them if we plan to keep, say, Social Security.1 For these reasons, Congress provides deductions and credits for parenting that it does not provide for, say, computer gaming.
Pregnancy is no picnic. It is difficult, exhausting, expensive, and potentially dangerous. The effects of pregnancy on women would take several pages to fully describe. From close personal observation, it is often a hellish ordeal. In my opinion, raising a toddler is far easier than raising a fetus.2 Pregnancy is a tough time even for the father, involving support of the suffering mother while preparing the household for the imminent arrival of a new member. (No stage of human development involves more cussing at furniture assembly instructions.) Pregnancy was among the hardest times in my life… and, mark my words, I had it a hundred times easier than my wife. Maybe a thousand.
Yet pregnancy is also an essential part of parenting. No adult has ever lived who wasn’t an infant first, so we provide tax deductions for raising infants. No adult has ever lived who wasn’t a fetus first, either. All the arguments for allowing tax deductions to parents of infants apply with equal or greater force to parents of unborn children.
You don’t have to agree that the fetus is a human person to recognize this. Even if the fetus is a mere “clump of cells” like a “toenail” or “cancer,” as the most reductionist anti-fetal arguments contend, parents with a bun in the oven are nevertheless engaged in a difficult, exhausting, expensive, and potentially dangerous project, on behalf of all society, that yields a creature of infinite value and inherent dignity, and which ensures Social Security will still have workers to support it in 18 years. So fix the law! Give pregnant moms their damn child tax credits, Congress!
…unless… unless Congress already has?
Seriously: who says I can’t claim my unborn child as a dependent on my tax return? Lots of online blog posts from different tax services say so, but they don’t cite sources. This one from H&R Block is typical. What does the law say?
Unborn Children & the Internal Revenue Code
Many people are intimidated by federal law and think that you have to be a lawyer to read it. Federal law is actually very simple: all federal law is printed in a single very long book called the United States Code. The U.S. Code (or “USC”) is divided into chapters called “Titles.” Each title deals with one very big subject, like “Title 13: The Census” or “Title 35: Patents.” Each title is then divided into chapters, which are divided into sections. The book is written in plain, precise language. It has to be, or citizens and courts wouldn’t be able to obey it. The main problem with the book is that it is very, very long.3 No one seems to even know how long:
Photograph of the U.S. Code. Just pretend it’s all one book. Credit: Alice Baker
Fortunately, we have the Internet now, so who cares? You can just look up any part of the USC online. Let’s do that!
“Qualifying child” is defined in Title 26 (The Internal Revenue Code), Chapter 1 (Normal Taxes and Surtaxes), Section 152 (Dependents Defined) with the following language:5
(1) The term “qualifying child” means, with respect to any taxpayer for any taxable year, an individual—
(A) who is a child of the taxpayer or a descendant of such a child
(B) who has the same principal place of abode as the taxpayer for more than one-half of such taxable year,
(C) who is younger than the taxpayer claiming such individual as a qualifying child and has not attained the age of 19 as of the close of the calendar year in which the taxable year of the taxpayer begins,
(D) who has not provided over one-half of such individual’s own support for the calendar year in which the taxable year of the taxpayer begins, and
(E) who has not filed a joint return (other than only for a claim of refund) with the individual’s spouse under section 6013 for the taxable year beginning in the calendar year in which the taxable year of the taxpayer begins.
Your “child” is defined later on in the same law (152(f)(1)) as your “son, daughter, stepson, stepdaughter, or eligible foster child”.
In plain English: suppose you are filing your taxes on January 1st. You are pregnant, aka “with child,” and have been for a while. In the previous year, was your unborn child…
…under the age of 19 at the end of the year? Unless you’ve had a 79-trimester pregnancy, YEP.
…not providing more than half of his or her own support? Children under age 3 (born or unborn) can’t provide their own support, and the unborn kid is definitely getting nutritional support from Mom whether Mom likes it or not, so this is another YEP.
…not filing a joint return? Children under age 3 (born or unborn) are incapable of filing joint returns, so YEP.
…living in the same place as you? The kid’s literally inside your body, so, YEP, the kid shares your home address.
…living there for more than half the year? MAYBE.
Most of these are extremely clear-cut.
Someone might object that your “unborn child” is not really your “son or daughter” within the meaning of the law, or that it’s ambiguous… but, no, it’s actually completely unambiguous.
Unborn Children & Ordinary Meaning
“Son” and “daughter” are not further defined in the statute, so we treat them according to their ordinary English meaning at the time of the statute’s adoption (2004). The definition of “daughter,” per the Oxford English Dictionary, is “a girl or woman in relation to either or both of her parents; a person’s female child.” (The definition of “son” is identical, except the gender is swapped.) So the definitions rest on the dictionary definition of “child.”
There are only three definitions of “child” listed in the Oxford English Dictionary that are relevant to our inquiry. (I have listed all of the 20 irrelevant definitions in this footnote7 so you can check my work.)
(a) “An unborn or newly born human being; a fetus, an infant.”
Clearly, an unborn child meets this definition. PASS.
(a) “A young person of either sex, usually below the age of puberty; a boy or girl.”
The ‘it’s a girl!!’ tags on all my childrens’ ultrasounds, which were added by professionally trained ultrasound technicians, show that, yes, unborn children are boys and girls, certainly below the age of puberty, and that literally everyone knows this, including all medical professionals, at least when they aren’t consciously thinking about the effect that acknowledging this could have on abortion rights. PASS.
(a) “As correlative to parent: A son or daughter (at any age); the offspring of human parents. Also as a form of address. In Old English bearn bairn n. is more common in this sense.”8
First, is an unborn child “the offspring of human parents”? The relevant non-circular definition the OED supplies for offspring is “the product or products of sexual reproduction in animals or plants,” so… yep! Even you people who insist on calling the fetus the “products of conception” gotta give us that one. Second, does an unborn child have “any age”? My gestational chart says yep! This definition clearly includes unborn children. PASS.
So, in 23 definitions and sub-definitions, the OED has exactly 3 definitions of “child” that seem relevant to the definitions of “son” and “daughter” in the child tax exemption law. Unborn children unambiguously meet all those definitions. This is a comprehensive dictionary of ordinary global English usage, gang.
Don’t trust the British? Fine. Try the contemporary Merriam-Webster entry. The closest Merriam-Webster gets to ambiguity is in its second sense of “child,” a sense not quite matched by the OED:
2 a: a young person, esp. between infancy and youth
This sense still includes unborn children, just not in the “especially” clause. Also excluded from the “especially” clause: adult children, older teens. 26 USC 152(d)(2)(A) makes clear that Congress does not intend to exclude adult children from its definition of “children.” Therefore this “especially” clause cannot be used to exclude unborn children, either.
The other Merriam-Webster senses of “child” are slam-dunks for the unborn, but are basically repeating the OED, so I won’t belabor the point. I trust it is clear: trying to find an authoritative “plain, everyday meaning” of “child” that doesn’t include unborn children is a fool’s errand. In general usage, unborn children are children. If you don’t like it, consult linguistics.
But maybe Congress in 2004 meant “son or daughter” in a more legal sense? So maybe we should look to their legal definitions? Here’s Black’s Law Dictionary:
1. A person’s male child, whether natural or adopted; a male of whom one is the parent. 2. An immediate male descendant. 3. Slang. Any young male person.
One who follows in the bloodline of an ancestor, either lineally or collaterally.
…although I’m fond of the old definition from the 2nd Edition:
[o]ne who is descended from another; a person who proceeds from the body of another, such as a child, grandchild, etc., to the remotest degree.
This is not even a close question. Is the child in the womb a descendant of the mother and of the father? Yes, obviously. Are they “the young of the human species… under the age of puberty”? Yes, obviously.
Even if you don’t think the unborn child is a “full human person” with whatever moral value you ascribe to that term, this “clump of cells” has a sex. It has parents. It has “proceeded” from the body of the father and mother (in the sense “procession” is used here9) to form its own body, and it is plainly a genetic descendant in the “bloodline” of both parents.
Perhaps the most decisive argument, however, came from my seven-year-old daughter. On Saturday night, I was subjecting her (under protest) to an explanation of one of the relevant court cases. (We were in the car, so captive audience.) As I articulated one of the statutory arguments, she interrupted me. “Dad, that isn’t how I would put it at all.” I asked her how she would put it. She answered, “Well, look, I would just ask the judges, if it’s not her child, what is it? An alien?”
Enough said!
Unborn Children & the Residency Requirement
Still, there was one “maybe” on our list of qualifications for the child tax credit: did the child live with you for more than half the year? Not all unborn children do, after all… and an IRS special rule complicates matters!
The IRS has a special rule that any baby born alive at any time during the year (even at 11:59 PM on December 31st) counts as living with you for more than half the year, as long as it lived with you (or in the hospital) after birth. This is a generous rule, and we’ll talk more about it in a little while, but, for now, we have to notice what this means for the unborn child we’re trying to claim as a dependent, assuming a normal 37-week10 pregnancy:
Babies conceived in January, February, March, or the first few weeks of April already qualify for the child tax credit under this special rule, because they will be born before December 31st.
Babies conceived in July, August, September, October, November, or December do not qualify for this credit because they did not live with Mom for “more than one-half [the] taxable year.” Winter conceptions may meet this requirement for the following year… but they will qualify for the credit that year anyway under the special rule, because they will be born in that year as well.
This only leaves babies conceived in May, June, and maybe the last week of April. These kids will live with Mom for “more than one-half [the] taxable year,” but will not actually be born (automatically qualifying them under the special rule) until the following year. These kids are the only unborn children who potentially qualify for the child tax credit but aren’t currently being awarded it.
My kids were conceived in October and March, respectively. I was unable to claim the first on my taxes because she did not live with us for “more than half [the] taxable year”: November and December is, of course, only two months, not six.11 I should have been able to claim my second daughter as an unborn child, because she did live with us in utero for almost eight months of the calendar year, but the IRS special rule meant I could already claim her as a born child when she arrived (prematurely) before year-end.
However, if we ever conceive a child in May or June, with a pregnancy lasting into the following calendar year, I decided years ago: I’m gonna claim that kid on my federal income tax return, because federal law says in plain language that I am allowed to do that. If the IRS decides to come after me, I will fight them in court.
How might I fare? How might you?
I warn you: I am about to plunge into a rabbit hole. I have already shown how, on a plain reading of the federal statute and the ordinary English language, your unborn children should already count as “qualified children” for federal child tax benefits. If you’re satisfied with that answer, stop here. Going forward, my intention is to arm a hypothetical future pregnant taxpayer with all the information she may need to decide whether to take on the IRS, plus tools to help her win. (But maybe consult an actual lawyer before you try this at home.)
If you want all the details on why the IRS doesn’t count our unborn children as dependents (and why they’re wrong not to), read on, but, heads up: here be dragons.
Unborn Children & the Code of Federal Regulations
The United States Code is not self-executing. Congress tells us how much we owe in taxes, but the Executive Branch, in this case the Internal Revenue Service, has to actually collect the money. The IRS must write the actual forms, address weird edge cases that don’t easily fit Congress’s language, and set up the physical system taxpayers use to pay their taxes.
Congress doesn’t need to get bogged down in these technical details. They have expressed the Law of the Land; they now delegate the details of execution to the executive branch. 26 USC 7805 authorizes the IRS to “prescribe all needful rules and regulations for the enforcement of this title.”
Those rules and regulations are published in another book called the Code of Federal Regulations (CFR). Every rule and regulation issued by the White House goes into this book, and stays there until a future White House takes it out.
The Code of Federal Regulations is intended to implement the United States Code. By necessity, the federal agencies sometimes have to interpret the U.S. Code in the process. However, Congress makes the laws in this country, not the White House. The CFR cannot contradict the U.S. Code. It also cannot go beyond what the U.S. Code commands—at least, not without specific authorization from the U.S. Code itself.12
It can be very difficult to find things in the CFR, but the CFR’s clarifications of the “qualifying child” law are at 26 CFR 1.152-1, -2, -3, and -4. Most of it is irrelevant to our issue. It addresses unusual situations like adopted kids, claiming the kids after a divorce, whether scholarships count as “support,” people born in the colonies back when the U.S. had colonies, and so on. Only two chunks are relevant to us.
[T]o qualify as a dependent, an individual must be a citizen or resident of the United States[.]
Uh-oh: unborn children are not citizens of the United States. The Fourteenth Amendment guarantees citizenship when a child is born (or naturalized). The Amendment doesn’t seem to prevent Congress from conferring citizenship on others. Congress could confer citizenship on unborn children, just as Congress could confer citizenship on the Welsh. However, Congress has not, to my knowledge, done so.
On the other hand, unborn children are clearly residents of the United States. They are physical creatures that inhabit a location. That location is within the borders of the United States (not Timbuktu, not international waters, not Mars). So we’re fine.
The second relevant chunk is 1.152-1(b), which is, officially, the source of the “special rule” that a child born late in the year still “counts” for the child tax exemption. Here’s the legal language:
The fact that the dependent dies during the year shall not deprive the taxpayer of the deduction if the dependent lived in the household for the entire part of the year preceding his death. Likewise, the period during the taxable year preceding the birth of an individual shall not prevent such individual from qualifying as a dependent under section 152(a)(9). Moreover, a child who actually becomes a member of the taxpayer’s household during the taxable year shall not be prevented from being considered a member of such household for the entire taxable year, if the child is required to remain in a hospital for a period following its birth, and if such child would otherwise have been a member of the taxpayer’s household during such period.
Here we start to see how rickety the different pieces of federal law can be. This bit of the CFR cites “section 152(a)(9)” of Title 26 of the U.S. Code. However, section 152(a)(9) was deleted in 2004!13 It’s gone! This regulation was written in 1960 and was last updated in 1971. It’s out-of-date.
It’s not simple to interpret a regulation that references a law that no longer exists. For a little while, I thought “section 152(a)(9)” should be interpreted to mean “section 152(d)(2)(H),” because that’s where most of the actual 152(a)(9) got moved to. But that doesn’t fit with how the IRS is actually enforcing this regulation. I’m going to set aside these apparent ambiguities for tonight, although it’s very… interesting… to try and unpack how (and if!) each sentence of 1.152-1(b) matches up with actual law. Here’s what the IRS itself seems to think this regulation means:
If your dependent is born or dies during the tax year, you only count the time before the dependent’s death or after the dependent’s birth. Dependent children still have to meet the “lived with you for half the year” test, but, for them, that means “lived with you for half of the time this year before dying or after gettin’ born.”
For example, if a child is born to you one month before the end of the tax year, the IRS thinks he “lived with you for half the year” as long as he lived with you for at least two weeks out of that month. Bonus: baby’s time spent in the NICU counts as living with you.
But, wait. Why would the IRS treat these events the same way? Death ends your life, so it makes some sense that you should only count the time you actually spent alive as your “year.” But birth doesn’t begin your life, so why would you only count the time after birth?
Hang on, does the IRS realize that fetuses are alive?
It does not! The IRS—on the basis of absolutely no federal statute, it should be noted—has concluded independently that life begins at birth. Unborn children are therefore ineligible for tax benefits. That is the source of all those H&R Block posts saying you can’t claim an unborn child, and that is our problem.
Unborn Children & Case Law
As we’ve seen, the White House’s job is to execute the laws of the land, but, in order to do this job, it must sometimes interpret the laws. Mainly, this is done through the Code of Federal Regulations. However, federal agencies must also deal with every individual situation in the United States. Some of those are strange or surprising, they are not covered by general regulations, and the agency has to make a judgment call. These interpretive judgment calls, made on a case-by-case basis, come in many forms, from interoffice memos to formal agency rulings to pseudo-court cases.
In 1940, the IRS decided that human life begins at birth. This earth-shaking development in the biological sciences occurred in a case called Wilson v. Commissioner of Internal Revenue, before the Board of Tax Appeals. Although the Board was not a court (and clearly not advised by biologists), it functioned much like a court, and its rulings have been respected as precedents.
Wilson v. Commissioner
Although the tax laws back in 1940 were very different, Mr. Lloyd Wilson was trying basically the same thing I’m suggesting: he attempted to count his unborn child as a dependent. Ernest Van Fossan, hearing the case for the B.T.A., was having none of it:
The word “person” as used in section 25(b)(2) [of the Internal Revenue Code of 1932] is to be taken in its normal, everyday sense of a living human being, a man, woman, or child, an individual…. The interpretation which petitioners suggest is so obviously strained as to merit little discussion. Doubtless in this fact is to be found the reason why this question has never heretofore been presented to the Board. It may also account for the paucity of authority in petitioners’ brief.
If an unborn child is not a “living human being,” then what is it? (An alien?) Van Fossan offers a suggestion:
[the fetus] was only a part of her mother, and not a human being or person.
The IRS later treated this suggestion as binding, applying it to stillborn children. You get no dependent exemption for a stillborn baby at any gestational age because, according to the IRS, she was never a living human being, only a part of her mother.
Van Fossan airily dismisses the entire body of common-law rights for unborn children in a single sentence:
Nor is the fact that, by common law and generally by statute, a child [in utero] is deemed to [actually exist] for the purpose of inheritance for its own benefit persuasive here. The credit here claimed is not for the benefit of the child but of the parents.
Van Fossan does not give any reason why the distinction between “the benefit of the child” and the “benefit of the parents” matters, legally, to the very legal existence of the child. It is certainly not obvious, and does not seem persuasive. It seems more like Van Fossan was trying the classic lawyer’s trick of dismissing precedents you don’t want to apply by coming up with some baseless “distinction” that allows you to ignore the precedents you don’t like. It’s very hard to say, though, because Van Fossan gave literally no explanation.
The whole decision is barely half a page long, so go ahead and read it. It’s as sobering as it is perfunctory.
Nevertheless, this single, half-page ruling has served as the basis for generations of IRS rules and rulings. Wilson is at the root of the “special rule” that treats birth as the start of life. It has informed the language used in IRS Publication 501 and its predecessors for at least 50 years. (I didn’t look back further.) It was the basis for an IRS ruling in 1973 that a child born alive is eligible for the deduction, even if she dies one second later—but stillborn babies are never eligible.14 It informed decisions about whether a surrogate mother or the child she carried could be a dependent in the mid-2000s.15Wilson’s finding that unborn children are not “living human beings” is, for tax purposes, the law of the land today.
Faulkner v. Commissioner
Curiously, another B.T.A. decision just a few months after Wilson, Faulkner v. Commissioner, dealt with a gift to a trust set up on behalf of an unborn child. Faulkner, decided by a different judge, was forced to again consider whether an unborn child was a “person.” This time, though, citing quite a bit of prior case law, Faulkner upheld the unborn child’s personhood. I particularly liked Faulkner’s quotation from the “famous case” of Thellusson v. Woodford (a British case from 1799 that had substantial persuasive influence on both sides of the Atlantic):
Why should not children en ventre sa mere be considered generally in existence? They are entitled to all the privileges of other persons.
Faulkner went on in this vein for several pages before reaching its legal conclusions, thereby supporting its conclusions with evidence rooted in cited law.
Faulkner argued that it didn’t contradict Wilson. It relied on Wilson’s own unconvincing “fetuses are legally people for their own benefit, but not for their parents’ benefit” distinction. (In fairness, there were some precedents that pointed in that direction, although other precedents pointed in the opposite direction.) Faulkner itself was a case where the gift in question was given for the fetus’s benefit, and stressed that point… while glossing over the fact that the gift generated a tax benefit for the fetus’s mother as well, calling its reliance on this distinction into question.
Faulkner was appealed to the full board and upheld by a 12-4 vote.16 Nevertheless, Faulkner was eventually overturned by new IRS regulatory rulings. Faulkner fell and Wilson survived. Understanding why the IRS chose to follow Wilson over Faulkner would probably require a dissertation on interoffice politics in the IRS of the 1940s and ‘50s. In an invaluable 1995 paper, Paul L. Caron explained the hows and whens of Faulkner’s destruction, but the whys remain a mystery to me. Whatever the reason, it happened, and, as a result, the IRS says you can’t claim your unborn child on your taxes.
Cassman v. United States
In 1994, Wilson was reaffirmed in Cassman v. United States, decided by Judge Wilkes Robinson of the United States Court of Federal Claims. In this case, Mr. & Mrs. Michael C. Cassman attempted to claim the child tax exemption on behalf of their then-unborn son, Jonathan Cassman.17 The Cassmans appear to have been represented by tax lawyers, not people with experience in the field of unborn law. They appear to have failed to press several arguments that they probably should have made. They lost.
Judge Robinson’s Cassman opinion is a better decision than Wilson. He explains himself, at least. Robinson defers to Wilson on stare decisis grounds:
Wilson represents a federal judicial precedent entirely on point with the essential issues in this case, and plaintiffs have failed to make a compelling argument as to why this court should disregard that precedent.
A “compelling argument” is required because, under stare decisis principles, it is not enough to show that an earlier decision was probably wrong. One must generally show that it was egregiously wrong, or that its precedential value has been eroded by other developments, or that the precedent has had other detrimental effects. Thus, a “compelling argument.”
Insisting that unborn children only ambiguously meet the definition of “person” or “individual,” Judge Robinson then analyzed legislative history to try and determine whether Congress intended to include unborn children within their scope or not. He concludes that, because a related provision applying to U.S. colonies operated only after birth, it must have been Congress’s intention that the entire child tax exemption must operate only after birth.18
This kind of legislative analysis was supported by precedents at the time, although it is disfavored by the majority of the judiciary today. It only makes sense if you concede Robinson’s argument that the definition of “person” is ambiguous. Textualism insists that the intent of the lawgiver is not the law of the land; the law is the law of the land. As Justice Kagan has said, “We’re all textualists now.” This privileging of legislative text over legislative intent was the core of Bostock v. Clayton County’s protections for gay and trans employees. Still, given his premises and the time period he lived in, Robinson’s legislative history was a perfectly serviceable piece of judicial analysis.
Cassman further notes that, in Roe v. Wade, the Supreme Court specifically rejected the proposition that unborn children are “persons” within the meaning of the Fourteenth Amendment. Judge Robinson wisely declines the plaintiffs’ invitation to interpret “person” here as meaning something different than it does in the Fourteenth Amendment.
On the other hand, Robinson sometimes walks you right up to the point where he intends to make a convincing argument, then just skips past the argument to the conclusion. The plaintiffsmade the same argument that I did earlier: that their son Jonathan was not a citizen of the United States while in utero, but he was obviously a resident of the United States, because he literally lived inside his mother’s womb, and she was a resident of the United States the whole time, so where else is he going to be a resident of? (Outer space?) Robinson draws a fantastically illogical conclusion:
Plaintiffs argue that Jonathan Cassman was a resident of the United States prior to his birth because his mother was a resident, and they ask the court to take judicial notice of the fact that it would have been physically impossible for the mother to be a resident and her unborn child not to be a resident. This argument is without merit. The court cannot justify viewing an unborn child as “residing” anywhere [Ed. What?! Why not? Where are the dictionary citations? What’s the reasoning?]; moreover, it would also be unreasonable for the court to view the unborn differently for the purposes of the terms “citizen” and “resident” [Ed.: WHY?! Does Robinson think illegal aliens in the United States aren’t “residents” with certain rights of their own?] The court declines to accept plaintiffs’ interpretation and concludes that Jonathan was neither a “citizen” nor a “resident” of the United States on December 31, 1991.
So Jonathan was a resident of… I guess nowhere? This unborn child could (and presumably did) receive medical care in the United States, because he physically lived in the United States and not anywhere else. But he did not actually “reside” here, according to Judge Robinson. Are both twins in a pair of conjoined twins are “residents” of the United States, or just one of them?
Robinson also notes Congress’s requirement that children “not [have] attained the age of 19” in order to be eligible for the exemption. He then concludes, out of nowhere, that the mere reference to age (which is colloquially based on birthdate) means Congress must have meant to exclude all ages before birth.
Having agreed with absolutely none of the Cassmans’ legal arguments, the Court is able to put the icing on the cake with a public policy argument:
…the court is concerned with the potential for increased administrative burdens both on the I.R.S. and on the taxpayers. A live birth, by operation of state and local law, results in the issuance of a birth certificate, which is a universally accepted and administratively efficient document of identification. In the present case, it is no coincidence that the principal evidence that plaintiffs have submitted — apart from an affidavit — to indicate that Mrs. Cassman was pregnant during 1991 is the birth certificate issued for her son in July of 1992. The birth certificate itself demonstrates that plaintiffs have a son. If the court held, as plaintiffs urge, that the dependent exemption was available as of the date of conception, then the exemption would be available for pregnancies that never resulted in live births and the issuance of a birth certificate, including those pregnancies ending in miscarriages, induced abortions, and stillbirths. In the absence of any clear evidence of congressional intent to do otherwise, the court must spare taxpayers and the I.R.S. the administrative burden of establishing that such pregnancies occurred or did not occur.
In re Fleishman
Finally, in 2007’s In re Fleishman, the U.S. Bankruptcy Court for the Division of Oregon reinforced Cassman by citing it in a dispute over whether an unborn person counted as a member of a “household” for purpose of Title 11 (Bankruptcy), Chapter 13. Judge Randall Dunn defers to the Census definition of “household,” notes that the Census does not count unborn persons as part of a household, and cites both Wilson and Cassman. Specifically, Dunn favorably cites the public policy argument at the end of Cassman and the “unborn children don’t reside anywhere” argument from the middle.
(One further case in this cluster, In re Pampas (2007) also rejects unborn children as members of a household, but does no meaningful analysis.)
Fleishman and Pampas are of little interest to us, as they deal primarily with the definition of a “household” under bankruptcy law, which has little directly to do with the definition of a “child” in the child tax credit, and neither case adds to the analysis of Cassman. I note them mainly for thoroughness.
Wilson and Cassman, however, are some pretty bad precedents for us, in our hypothetical lawsuit against the IRS. It’s therefore worth examining why they are so weak.
Wrong the Day They Were Decided…
Wilson was egregiously wrong the day it was decided. It is not a reasoned judgment of judicial character. Ernest Van Fossan gives no sense that he felt any obligation to try to produce one. Only the first sentence of Member Van Fossan’s19 discussion is correct:
The word “person”… is to be taken in its normal, everyday sense of a living human being, a man, woman, or child, an individual.
Yes! This is precisely my point. Undoubtedly, it was Mr. Wilson’s point as well.
Mr. Wilson’s unborn child was, objectively, both a “living human being” and a “child”. This was known, beyond a shadow of a doubt, even by the more primitive medical science of the 1940’s. Nor has the meaning of either word changed substantially since then; contemporary dictionaries reflect the same inclusive meanings they do today.20
Nor is Member Van Fossan correct that the “normal, everyday” sense of “person” excluded unborn children. On the contrary, in 1941—barely a year after Van Fossan handed down his decision—the federal government quietly declared that unborn children were “persons” for the purposes of receiving welfare payments under the Social Security Act, apparently on the grounds that this was how the word was generally understood. This policy would continue for 30 years, right up until changes in law made it much more expensive. When it realized how much more expensive, the Department of Health, Education, and Welfare *ahem* discovered reasons to exclude the unborn.21
As Faulkner shows through authority after authority, there was also ample common law material supporting substantial legal rights for fetuses, even in 1940. The Faulkner decision approvingly quotes (among others) the 1797 English case Long v. Blackall22:
An [unborn child] is capable of having a legacy, or a surrender of a copyhold estate, made to it. It may have a guardian assigned to it, and it is enabled to have an estate limited to its use, and to take afterwards by such limitation, as if it were then actually born. And in this point the civil law agrees with ours.
Contrary to Wilson‘s literally baseless assertion, these common law rights were not a mere rule of construction, nor were they strictly limited to circumstances where the fetus was the sole beneficiary. Faulkner itself, despite its protest, was a case where the fetus was not the sole beneficiary. Yes, some cases, like those excluding stillborn children from inheritance, did point in that direction—and, while those cases had been reversed in England, they remained a rule in at least some American jurisdictions. (Member Van Fossan might have favored us by citing one.) However, others, like the aforementioned Thellusson, instead contended that unborn children are already “entitled to all the privileges of other persons.” For a more comprehensive survey of the state of the law of fetal rights circa 1940, consult William J. Maledon’s 1971 paper, “Law and the Unborn Child.” SPOILERS: it is not a winner for Wilson.
And so every sentence in the Wilson rationale after the first is either completely wrong, entirely unsupported, or—most often—both. That may sound damning, but not really: there’s only six more sentences in the opinion, and one of them is a quotation. It is impossible to pick Wilson apart, because there is simply nothing there.
The central claim in Wilson is, “The interpretation which petitioners suggest is so obviously strained as to merit little discussion.” As we have proved, this is wrong. Member Van Fossan was a handsomely paid Article I judge who wrote a half-page opinion that set policy for four generations which denied child welfare credits to untold millions of Americans. I am a blogger writing 82 years after the fact, without a law degree, mostly writing and researching this article weeknights, well after midnight, because I have a day job and kids (and a nasty cold I can’t shake). I have spent a great deal more energy demonstrating Member Van Fossan is wrong than Member Van Fossan spent bothering to demonstrate that he was right. He deserves no more of our attention.
The Cassman court of 1994 turned in a reasoned judicial decision worthy of respect as an actual precedent. However, in the name of stare decisis, it also turned a blind eye to all Wilson’s deficiencies. One can’t help but wonder whether the famously distortionary lens of abortion law23 played some role in Cassman as well. Cassman‘s affirmation of Wilson added nothing to Wilson that might repair it. Cassman merely failed to see compelling reason to overturn Wilson. The court deemed one particularly awkward quotation in Wilson to be obiter dicta (without legal force), extended Wilson’s definition of “person” to the word “individual,” and otherwise gave Wilson its blessing.
What Cassman does add to our case (aside from its bizarre assertions about “residency”) is its brief discussion of Roe v. Wade, which stated that a fetus is not a “person” within the 1868 meaning of the 14th Amendment. This was a reasonable discussion! Roe was binding precedent on Judge Robinson’s court, and I have found little reason to believe that the meaning of “person” changed substantially between 1868 and 1932 (when the tax code in Wilson was enacted), or between 1932 and 1986 (when the tax code in Cassman was re-enacted).
However, Robert George and John Finnis, among others, have shown that Roe likely erred in this finding. In fact, it is more probable that unborn children are included within the word “person” as the word was legally understood in 1868. Moreover, it is probable that Roe will be overturned in its entirety in a matter of weeks, ending its precedential value.
Wilson was wrong the day it was decided. Cassman should not have followed it. Both decisions deserve to be overturned on the force of facts already available when they were handed down.
…And They Are Wronger Today
Yet the facts have changed substantially. The foundations of Cassman and Wilson, fragile as they were, have further “sustained serious erosion” since they were written (to borrow the words of Lawrence v. Texas).
In the years since Cassman was decided, Congress has clearly shown (on more than one occasion) that it recognizes fetal life. In the Unborn Victims of Violence Act of 2004 (codified at 18 USC 1841), Congress recognized “unborn children” as the legal victims of a wide variety of federal crimes—including murder—if those crimes should lead to the injury or death of the “unborn child.” Congress defined “unborn child” in that act as “a member of the species homo sapiens, at any stage of development, who is carried in the womb.”
This law stopped short of identifying unborn children as “persons,”24 but it is difficult to argue that the phrase “child, who is in utero” does not at least legally identify unborn children as “children.”
Moreover, in the Partial-Birth Abortion Ban Act of 2003,25 Congress explicitly made a finding of fact that a “living, unborn child” exists and is a victim of the procedure banned by the Act. The law refers more than once to a “living fetus,” which makes untenable Wilson’s suggestion that the fetus is merely “part of her mother” rather than itself “living.” The Partial-Birth Abortion Ban Act also makes the first explicit reference I can find in the U.S. Code to the “mother” and “father” of the living fetus. If a “daughter” is defined (as the Oxford English Dictionary puts it) as “a girl or woman in relation to either or both of her parents; a person’s female child,” then Congress has authoritatively identified the “living fetus” as a “child” who exists “in relation to both of her parents.”
Furthermore, some 38 states now have fetal homicide laws, 29 of which apply immediately at fertilization. A great many of these laws were either first enacted or substantially modified after Cassman. Many more of them explicitly define an unborn child in terms that satisfy the language of the federal child tax exemption. Here is a short excerpt from the law in Kentucky (passed in 2004):
07A.020 FETAL HOMICIDE IN THE FIRST DEGREE
(1) A person is guilty of fetal homicide in the first degree when: (a) With intent to cause the death of an unborn child… he causes the death of an unborn child;…
(2) Fetal homicide in the first degree is a capital offense.
07A.010 DEFINITIONS.
(a) “Unborn child” means a member of the species homo sapiensin utero from conception onward, without regard to age, health, or condition of dependency.
State court precedents on this question have grown more favorable as well. (That’s not even close to a comprehensive survey. It’s just a taste.)
It is true that none of these enactments directly bear on tax law. Yet each time Congress shows that it considers the unborn to be children, the burden of proof mounts for supporters of Wilson to show that Congress didn’t intend to count them as children for tax purposes—especially when the dictionary evidence points so decisively against them. Each time a state shows that its understanding of the ordinary English word “children” includes unborn children, that burden ratchets a little higher. To date, no one appears to have offered any plausible positive evidence to meet this burden at all.26 (Wilson and Cassman both reached their conclusions primarily by placing the burden of proof on the other side, not by offering any positive evidence of their own.)
Finally: all of the federal action mentioned here (and much of the state action) occurred before October 4th, 2004. This date is important, because, on October 4th, 2004, Congress enacted the Working Families Tax Relief Act of 2004. This law rewrote from scratch the legal definition of dependents. This was the first time the law had been comprehensively overhauled since the 1950’s. The current, binding definition of a “qualifying child” in federal tax law was created that day.
This matters for statutory analysis, because the first rule of textual analysis is that words in a statute bear the public meaning that they held at the time the statute was passed. The meaning of “child” enshrined in 2004’s tax law must, therefore, be understood to have been at least informed by the understanding of “child” Congress had only recently enshrined in the Partial-Birth Abortion Ban Act (November 5th, 2003) and in the Unborn Victims of Violence Act (April 1, 2004). It should also be informed by the burgeoning recognition of unborn children in the states, which presumably reflected awareness of unborn children in common language as well.
It also matters because the 2004 law changed the key word. In Wilson, dealing with the 1932 tax code, the key word was “person.” In Cassman, dealing with the 1986 tax code (with language dating to 1954), the key word was “individual,” which Cassman treated as synonymous with “person.” Today, however, thanks to the 2004 revisions, the key word is “child.”
While the simplest definition of “person” or “living human being” is simply “a living member of the species homo sapiens,” many people object to this definition, because it counts as “persons” certain members of homo sapiens that they don’t think are worthy of the human rights recognized in full persons. These objectors argue that “personhood” is attained only when a homo sapiens attains some developmental milestone such as brainwave activity, viability, acceptance by the community, or language. This is a philosophical argument (really a kind of secularized delayed ensoulment argument) and it is very difficult to resolve.
“Child” is considerably less charged. Even if we conceded that a fetus is not a “person” or “human being,” “child” is a word that merely notes a predominantly biological relationship between one organism and one or more other organisms. The fetus, even if not a “person,” is nevertheless the “child” of its parents. Congress has acknowledged this very obvious fact. It is about time the Internal Revenue Service does the same.
Final Trifles
It feels like a betrayal of my purpose not to mention a few final legal points.
First, the IRS will undoubtedly assert that its interpretation (that “child” and “son or daughter,” as used in Congress’s statute, does not include unborn children) is entitled to judicial “Chevron deference.” A response to this would require full development in any actual lawsuit, but, very briefly:
Chevron only applies when there is ambiguity in the statute. This statute is not ambiguous. No reasonable reading excludes the unborn. (Once again, consult the dictionary.) The IRS’s rule is not an “interpretation” of Congress; it is a contradiction of Congress.
Someone who understands administrative law better than me can say whether the IRS’s “interpretation” (largely through Revenue Rulings based on Wilson) passes “Chevron Step Zero.”
Let’s see what Chevron still means in a couple of weeks when AHA v. Becerra comes out. (That’s not a prediction, just a statement that I’m not going to write a multi-page Chevron analysis when the whole thing could be void by July.)
Second, one factor of stare decisis this article hasn’t mentioned (because it wasn’t really doing a stare decisis analysis) is “reliance”: sometimes, a wrong decision should be adhered to anyway, because lots of people rely on it. There is no reliance interest in Wilson v. Commissioner and its sequelae. None. Not a single person’s ox gets gored if pregnant women get to claim a credit for their unborn kiddos.
Third, the IRS will undoubtedly point out that several congressmen over the years have tried to make the child tax credit explicitly include unborn children, and their efforts have failed. (Here’s the latest.) This effort, they will argue, shows that Congress does not believe that the child tax credit currently includes unborn children, and that the failure shows that Congress approves of that. This can be rebutted simply by naming two nouns: the equally-failed Employment Non-Discrimination Act, and Bostock v. Clayton County. As the Bostock majority wrote, “This Court has explained many times over many years that, when the meaning of the statute’s terms is plain, our job is at an end… Legislative history can never defeat unambiguous statutory text.” So too here.
Fourth, the Cassman decision openly worried about the administrative burdens of finding for the plaintiffs. While public policy arguments should not influence the judiciary (since public policy is the quintessential concern of the political branches), we all know that they do have at least a subconscious impact on nearly everyone. Let’s put our minds at ease.
While the finding that unborn children qualify for certain tax benefits may be initially disruptive, courts and states would have little difficulty adapting to the new understanding—as they have adapted to changes in law and precedent throughout American history. Initially, the IRS could require taxpayers seeking the credit to provide some reliable evidence that their fetus qualified under the statute, such as a doctor’s affidavit as to the existence of an unborn child and its age. (It could clarify the “one-half of the year” requirement in ways that are administratively bearable.) Keep in mind that the great majority of unborn children become born children and qualify for the relevant benefits anyway, so the big earthquake here will be for mothers of stillborn children, who will finally be able to get tax benefits for the resources, time, suffering, and love they invested into a person who would have been a future citizen and taxpayer. States, which currently issue certificates of live birth but are a little more slapdash about certificates of fetal death, will need to clean up their acts.
This would be a change, no doubt, but, in a country that routinely overhauls large sectors of its economy through legislation, the costs are not nearly high enough to continue holding a valid law passed by Congress in partial suspension.
Why You Still Might Lose
It seems to me that you should win this case. You deserve to win this case. As I have shown, The Law, capital-L, is on your side. If you remember way back at the beginning, the moral and practical arguments are on your side, too.
Yet there’s a good chance you’ll still lose. You’re going up against multiple precedents, one of them deeply entrenched in IRS tradition and regulations. That’s always an uphill battle. Drawing a sympathetic judge is a must. If I were to guess why you’ll lose, it’s one of these:
A court decides that Chevron deference applies after all and finds the IRS’s interpretation reasonable under the exaggerated Chevron deference of Brand X v. NCTA. I don’t see the current Supreme Court doing this, but what makes you think this is going to the Supreme Court?
Stare decisis is at its strongest when it comes to statutory interpretation. The idea is that, if a court misinterprets a statute, Congress can just fix the statute. If Congress doesn’t fix the statute, that must mean Congress agrees with the ruling. Stare decisis tends to be exactly as strong as the presiding judge wants it to be (this is why multifactor balancing tests are bad!), and no lower-court judge ever got pilloried for affirming an old precedent. Thus, it’s entirely possible the lower court just sticks its fingers in its ears and affirms Wilson, while higher courts deny your appeals.
Because I am not a lawyer, I may have made some egregious errors in this article. I don’t think that’s too likely; I finally finished reading Paul L. Caron’s analysis of Cassman after I finished writing the section above, and his analysis seems to line up pretty well with mine. (He’s less vociferous than I am, of course.) I see from Ye Olde Google that he’s a dean at Pepperdine now, so, y’know, not too shabby. Nevertheless, you should certainly talk to a real lawyer before you try and actually claim your unborn child on your taxes.
The consequences of losing this case could be substantial. If you claim an unborn child on your taxes (in knowing defiance of current IRS rulings), and you lose the case, the IRS must decide whether your case had a “realistic possibility of being sustained on its merits” in the first place. If they decide that you never had a chance, then you are considered to have “intentionally disregarded” an IRS regulation, and, under 26 USC 24 (g)(1)(B)(ii), you will not be allowed to claim the Child Tax Credit for any of your children for 2 years. With the credit currently worth $2,000 per child per year, you could easily be looking at (depending how many kids you have) taking a $6,000 or $8,000 or $10,000 hit… twice.
I like to think the pro-life community would have your back in that situation.
The End
You already have the right to claim your unborn children for the child tax credit under law, but the IRS does not recognize the law because of a really bad half-page ruling from 1940. The issue only cleanly arises under certain circumstances (roughly: your child is conceived in May/June and you can prove it), but, if that happens to apply in your case (or if you can find a way to give yourself some wiggle room) it might be a great deal of fun to prove the point in a court of law.
America’s pregnant moms would certainly thank you, and it would bring unborn children one agonizingly small step closer to full recognition under the laws of the United States.
Imagine a stirring ending here, instead of me just collapsing in a heap at my desk at 2:37 AM. Thanks for reading.
Next time: a fresh installment of Worthy Links. After that: look, it’s Supreme Court month, who knows what will come up? In regular business, I also have a half-finished draft about an anti-gerrymandering amendment, a quarter-finished draft about Andrew Koppelman’s 13th Amendment argument, and I’ve been trying to make an essay called “The Decline and Fall of Star Trek” work for years. Or I’ll do The Orville.
As always: if you see anything that’s just wrong on this post, write me or leave a comment. Some of you out there in readerland actually are lawyers, after all! I do read everything, and I try to make proper amends when I get it wrong.
There is a common misconception you are entitled to Social Security because you “paid into” a retirement account throughout your working life, and, when you retire, that account is simply “paying out.” This is false. In fact, Social Security uses all the money you pay in to support current retirees. The money you paid in is gone. When you retire, your Social Security check will not come from your personal savings, but from the tax dollars of the younger generation that’s still working. This works as long as Americans have replacement-level fertility: 2.1 children per woman. American women today average 1.6 children.
By “fetus,” I of course include “embryo,” “zygote,” and “blastocyst.” Regardless of the medical definition, unborn children at all these stages are known colloquially as “fetuses.” It’s fine to just say “fetus.” Don’t @ me.
Just don’t use the phrase “fertilized egg” in my hearing. That phrase is an oxymoron. The egg is destroyed by the process of fertilization. It is replaced by a human child who is at the zygote stage of development.
The other main problem is that sometimes a section is cancelled out by another section—or even by a court ruling—and it isn’t obvious from the text. This is not too common, but it is very aggravating, and it does really help to have annotations.
Pro tip, though: in most sections of the U.S. Code, the important thing that covers 80% of people is in the first two or three sentences, and the rest of the section deals with exceptions, exact definitions, and procedures—which you can usually just skim.
The child tax credit has a few more conditions attached to it. It is also much harder to read. The Trump Tax Cuts Act in 2018 created temporary rules for the credit that last until 2025. (It also lowered the value of the child tax exemption to $0 for the same period.) Then, in 2021, the Biden Rescue Act modified the credit again in 2021 with even more temporary rules that counted only in 2021. In other words, the current child tax credit rules are spaghetti code. Fortunately, it mostly doesn’t make much of a difference!
The main thing that I found where a child might qualify for the exemption but fail to qualify for the credit is that 17-year-olds (and older) are ineligible for the credit, but are often eligible for the exemption. Also, the credit only pays out part of the amount if your child doesn’t have a Social Security Number before Tax Day (April 15th). This should not be a problem; the unborn children this post is mainly concerned with will generally be born and registered with SS in January/February/early March.
You can read the entire child tax credit statute at 26 USC 24, and certainly you and your lawyer should do so before you sue the IRS for your unborn child tax credit.
In the actual statute, some of this text is actually hiding down in 152(c)(2) and (c)(3), but is incorporated by reference into the main definition. I have moved it around to make it more readable. I have also omitted language that relates to students, siblings, and others who clearly aren’t relevant to our “do the unborn count?” question. If you want to trust-but-verify, I applaud that: see the original for yourself.
Unless your child is non-binary? Does a non-binary child (born or unborn) count as a “son” or “daughter” and thereby qualify for the child tax credit? 1 USC 1 says that words importing the masculine gender include the feminine as well, but that’s strictly binary, so… No, hold on, I’m not worrying about this tonight.
Here are the definitions of “child” from the Oxford English Dictionary that are clearly not relevant to our inquiry about what the tax exemption statute means. As a rule of thumb, I marked a definition “irrelevant” if any two-year-old would fail it, since we all agree that all two-year-olds can be claimed for the child tax exemption:
(b) spec. “A female infant, a baby girl. Now chiefly English regional (south-western) and Irish English.”
[Ed. The statute specified sons and daughters, and no one would read “child” in this statute to mean just daughters anyway. This specialized definition is therefore irrelevant to us.]
(b) “A young man; a youth, an adolescent. Obsolete (rare after 16th cent. except in biblical use).”
(c) “More generally: any man without reference to age; a lad, fellow, chap. Frequently used contemptuously or affectionately. Now Scottish regional.”
“A young man of noble or gentle birth. Frequently as a title (either preceding or (in early use) following a proper name), in ballads, etc. Obsolete (archaic in later use).”
[Ed. Good luck using this definition to keep child tax credits away from the unborn by restricting child tax credits to the children of wealthy American aristocrats!]
(a) “A pupil at a school, esp. a charity school. Obsolete.”(b) “spec. A boy chorister.”
(a) “A person who has (or is considered to have) the character, manners, or attainments of a child, usually with negative connotations; an immature, irresponsible, or childish person.”
[Ed. The child tax benefits are not awarded to childish people generally, but to sons and daughters.]
(b) “As a form of address, used either contemptuously or affectionately.”
“A young person (in early use esp. a boy or young man) in service; an attendant; a page. Cf. child-womann. at Compounds 1b. Now only in historical contexts.”
“Scottish. Nautical. In plural. Low-ranking members of a ship’s crew. Obsolete.”
“South African. In plural. Also with capital initials. Young, black, left-wing political activists during the anti-apartheid struggle of the 1970s and 1980s. Cf. comrade n. Additions. Now historical.”
(b) “The young of an animal. Now rare.”
“Esp. in biblical use: a disciple of a teacher; a person in a similar relationship to this. Usually with possessive or of. Chiefly in plural.”
“In plural. Esp. in biblical and derived uses: descendants; members of the tribe or clan.”
“A person who inherits and hands on the spiritual or moral tradition of another. Usually with possessive or of.”
“Theology. Esp. in Child of God. A person considered as belonging to God, either by creation, or by regeneration or adoption.”
“Expressing origin, association, natural relation, or characteristic: the offspring or product of a particular place, time, event, circumstance, influence, etc. (a) referring to a person. (b) referring to a thing.”
“Computing. In a tree or other hierarchical structure: a node which is immediately subordinate to another node.” Let’s give the child tax credits to a server! Or not.
This is definition 9(a) in the OED, not definition 3(a)—but HTML, the markup language that powers the Web, is surprisingly inflexible about numbered lists, so it’s showing up here as 3(a).
“Proceed from the body of another” here refers to the procession of gametes from the mother and father to form a new organism, not to the procession of the fetus from the birth canal. If it did refer to birth rather than conception, then males, who do not give birth, could not have descendants, and obviously males do have descendants.
People say pregnancy lasts 40 weeks, but that’s counting from the first day of the last menstrual period. There is no pregnancy until there’s an unborn child, and there isn’t an unborn child until dad’s sperm fertilizes mom’s egg, transforming both into a zygote. That happens within about one day of ovulation, which is typically three-ish weeks after menstruation starts.
I’m not certain you really need to have your unborn child in your tummy for a full six months of the calendar year to claim the credit. As a matter of fact, out of everything I say in this article, this is the part I’m least confident in. You might be able to argue that the IRS special rule should be re-interpreted to cover anyone who is alive, even in utero. The plaintiffs in Cassman (discussed later on) did just that. They lost, but for other reasons. Still, that special rule is kind of a big mess, and I’d rather have the plain text of the law foursquare on my side.
The extent to which Congress is allowed to delegate its legislative powers to the executive branch is currently a hot issue. Look up the nondelegation doctrine sometime to fall down a rabbit hole, and get hyped/nervous for West Virginia v. EPA, an upcoming Supreme Court decision that may signal a new era in delegation case law.
You can see §152(a)(9) in its original context on p85/pp44 of this document and what seems to be its substantively final amended version on p2/pp1607 here.
The initial ruling was Revenue Ruling 73-156, available in Internal Revenue Cumulative Bulletin 1973, Volume 1. The baby in this case was actually killed in an abortion, but survived long enough to be born momentarily and draw breath. When Sen. Jesse Helms found out that mothers were claiming a tax exemption for children they had aborted (after a rather shabby attempt, p2609, to hide this from the public), it caused a brouhaha. The “fix” for the abortion issue was Revenue Ruling 85-118, available in Cumulative Bulletin 1985, Volume 2.
If you have an appropriate subscription, you can also find the legal reasoning supporting Rev. Rul. 73-156 in General Counsel Memorandum 35124. GCM 35124 was repealed through GCM 39394, which is publicly available online, when Rev. Rul. 85-118 came out.
The Revenue Rulings are not very important in the grand scheme of things. Cassman leans on them, but only a little. However, I spent so many hours finding these documents without Westlaw access that I didn’t want to omit them from this post entirely!
Jonathan Cassman is now almost 30 years old and, from his social media, seems to be doing just fine. I neither know nor care about his opinion on the federal precedent that bears his name. I just have a weakness for checking on people who were once involved in court cases that they’ve probably forgotten about.
Paul L. Caron calls this, in reserved lawyerly fashion, “not particularly compelling,” and points out that this clause could just as easily bear the opposite interpretation (p5/p323).
The Board of Tax Appeals was later reconstituted as the United States Tax Court, a proper Article I court, but, in 1940, administrative law judges were still a pretty new thing, and Van Fossan’s official title was “Member,” not “Judge.” Gotta admit, I had no clue the B.T.A. ever existed until last Thursday.
Member Van Fossan, incidentally, was a Calvin Coolidge Republican who is best known for presiding over the trial of industrialist Andrew Mellon, wherein Mellon was exonerated. Mellon was the Republican who oversaw the establishment of the Board of Tax Appeals, Matt Stoller has claimed (in his book Goliath, p111) that Van Fossan and the Board tilted the trial in Mellon’s favor. That’s everything I’ve been able to find about the guy. I guess I should start his Wikipedia stub.
In 1975, the Supreme Court upheld this exclusion, partially on the basis of judicial deference to agency interpretation and partially on the basis of a peculiar legislative history… but mostly on the basis of the majority’s own personal sense (citing no authority whatsoever, much less a dictionary or law) that the “ordinary meaning” of “dependent child” means “an individual already born, with an existence separate from its mother.” Given that this was the exact same court that had decided Roe v. Wade less than two years earlier, this attitude toward unborn children is perhaps not a big shocker.
The dissent notes that the Supremes’ personal sense of what “child” meant conflicted with the decisions of five out of six circuit courts and at least ten district courts that had considered the question (although at least four district court agreed with SCOTUS). This alone shows that the Supreme Court’s vague, unsourced sense of the “ordinary meaning” of the word “child” was simply wrong.
The Born-Alive Infants Protection Act of 2002 (codified at 1 USC 8) did define all children born alive as “persons” and as “human beings”. At first, this may seem like pretty bad news for our case! However, the BAIPA also included this clause, which absolutely prevents BAIPA from being used to support or undermine the legal status of the unborn child:
(c) Nothing in this section shall be construed to affirm, deny, expand, or contract any legal status or legal right applicable to any member of the species homo sapiens at any point prior to being “born alive” as defined in this section.
The PBABA is codified at 18 USC 1531. However, the codification lacks Congress’s bracing findings of fact. Those findings are worthwhile reminders of what so-called “bills to codify Roe”, such as the Women’s Health Protection Act, would restore to the United States. So read the PDF of the bill as-enacted.26
The strongest evidence I have seen presented in a federal ruling was the fact (noted in Burns v. Alcala) that Congress considered legislation (which failed to pass) to expressly exclude unborn children from welfare benefits in 1972. This evidence, however, can be read to favor either side (as Justice Marshall points out in dissent). This is one reason courts don’t do legislative history like this anymore.
Because I can’t stop writing (even off-blog) about Dobbs
NOTE: This post was originally published at my Substack. The footnote links go there instead of to the bottom of the page.
Look, it’s really hard to find public-domain images of Robert Bork, so this is just going to have to do, okay?
Law & Liberty has just posted an essay I wrote about (what else?) Justice Alito’s draft majority opinion in Dobbs v. Jackson Women’s Health, under the title… (new line for added clickability!)…
My piece is an indirect rebuttal to a Wall Street Journal article from a few weeks ago entitled, “Justice Alito’s Originalist Triumph”. That headline sounds right, but the problem is it isn’t true.
…Decades later, the alliance of originalists and pro-lifers (among others) earned a five-vote majority on the Supreme Court, and, in 2022, that majority chose to confront Roe in the case Dobbs v. Jackson. The climactic showdown had arrived, not only for the pro-life movement, but for the finely-honed edge of originalist textualism, at last ready to do battle with its primordial antithesis.
At least, that’s what you might have expected.
The leaked draft majority opinion, by the “practical originalist” Justice Samuel Alito, would indeed be a significant victory for pro-lifers, should it become official. Yet the draft not only does not depend on originalist textualism; it bears almost no evidence of being influenced by originalism at all!
I’d share more here, but L&L paid good money for these words and they deserve your clicks.
Since I couldn’t do so in the article, I would like to mention that I am indebted to Professor Lawrence Solum, who did a tweet on May 6th that got me thinking, and that thinking led to this essay. (His tweetstorm adds valuable context that my article doesn’t touch.)
ADDITIONAL BONUS CONTENT FOR DE CIVITATE READERS ONLY: Here is the Robert Bork Uncyclopedia page, which I had nothing to do with, but which made me laugh quite a bit. “The Anti-Trust Paradox!” Man, what a bunch of cards…
NOTE: This post was originally published at my Substack. The footnote links go there instead of to the bottom of the page.
“Charon’s obol” is a coin placed in the mouth of a dead person so that person can pay for Charon’s ferry into the underworld. “Glucksberg’s obol” is when an originalist pretends substantive due process rights make sense in order to analyze them under the (non-originalist) Glucksberg test.
Elsewhere on the Internet this week, I was involved in a group discussion about Justice Alito’s Draft Majority Opinion in Dobbs v. Jackson, which I have been obsessingover. The quality of the conversation was very good,1 so I decided it was worth putting into a blogletter.
Q’s are real questions asked by real people. A’s are all from me. I have very lightly cleaned them up, but, since this is a Dashed-Off Daily Dobbs upDate, I haven’t touched them much.
There are 12 questions. The first 7 are basically legal, although we get into some very broad discussions about constitutional rights. The next 4 are mostly scientific, regarding the biological status of the fetus. The last one’s a bonus. They are:
After Dobbs, what is the constitutional basis for protection of same-sex marriage and sexual relations in the US? [Discussion-starter]
Is Alito allowed to base his decision on the “history and traditions” test from Washington v. Glucksberg?
What was wrong with Lawrence and Obergefell?
Isn’t consensual sex a protected “Privilege or Immunity”?
Isn’t consensual sex protected by the Ninth Amendment?
Shouldn’t judges be flexible about unenumerated rights?
Isn’t applying the Glucksberg test like this basically originalism? Doesn’t that have bad consequences?
Does abortion really “extinguish” a “human life”? Can you cite sources?
But zygotes aren’t fetuses and souls are not justiciable.
Calling the fetus alive is absurd!
But most zygotes die!
Is the Draft Majority an originalist decision?
Honestly, this is way too much content. I thought about splitting into separate, bite-sized posts, which would keep me flush with content for weeks… but I think it would start to feel spammy on your end. If you aren’t in the mood to read 30 pages of discussion straight-through, I suggest you skim the Question titles and read any that interest you. You can always circle back later, or read just one question per day.
Q1: After Dobbs, what is the constitutional basis for protection of same-sex marriage and sexual relations in the US? [Discussion-starter]
The leak of a draft majority opinion from the US Supreme Court this week gave more support to widespread expectations that the Court will reverse its 1973 Roe v. Wade and 1992 Planned Parenthood v. Casey decisions, resulting in swift or immediate abortion bans in many parts of the country. However, in a less clear sign for the future, Justice Samuel Alito also finds weakness in a list of other civil-rights decisions including Lawrence v. Texas (2003), which prevents governments from banning same-sex sexual intercourse (“sodomy”), and Obergefell v. Hodges (2015), which requires governments to give equal recognition to same-sex and opposite-sex marriages:
These attempts to justify abortion through appeals to a broader right to autonomy and to define one’s “concept of existence” prove too much. Casey, 505 U.S., at 851. Those criteria, at a high level of generality, could license fundamental rights to illicit drug use, prostitution, and the like. See Compassion in Dying v. Washington, 85 F. 3d 1440, 1444 (CA9 1996) (O’Scannlain, J., dissenting from denial of rehearing en banc). None of these rights has any claim to being deeply rooted in history. Id., at 1440, 1445.
(emphasis added)
So if their lack of deep historical roots is a flaw and the “broader right to autonomy” is not a solid foundation, what is the remaining constitutional justification for the Lawrence and Obergefell decisions? How is a right to same-sex relations better supported than a right to illicit drug use or prostitution? Assuming the Supreme Court majority ultimately adopts something similar to the reasoning in this draft, how much of its reasoning in Lawrence and Obergefell is potentially subject to similar reconsideration?
A1
First and simplest, I think you’ve misread the passage you quote. The antecedent of “these attempts” is not the list of cases upon which Casey and the Solicitor General relied themselves.
The antecedents of “these attempts” are Casey‘s attempt and the Solicitor General’s attempt to convert those individual cases, which affirm specific rights, into a broad constitutional “principle that physical autonomy and bodily integrity are integral components of liberty” (Brief of Respondents 18; internal quotes omitted).
Alito is not questioning Obergefell or Lawrence or Loving or East Cleveland. That would actually be really weird, because Alito relies on East Cleveland both directly and indirectly at other points in the opinion (including for the Glucksberg test). Instead, Alito is saying that the recognition of rights to (respectively) gay marriage, consensual sex, interracial marriage, and living with your family (among other rights listed in that long block on Draft Majority Opinion, p31) do not mean that there is a blanket right to “bodily autonomy,” or, at least, if there is such a blanket right, it does not extend so far as to include the right to kill a human fetus in utero. He makes this clear in the very next paragraph:
What sharply distinguishes the abortion right from the rights recognized in the cases on which Roe and Casey rely is something that both those decisions acknowledged: Abortion destroys what those decisions call “potential life” and what the law at issue in this case regards as the life of an “unborn human being.” See Roe, 410 U. S., at 159 (abortion is “inherently different”); Casey, 505 U. S., at 852 (abortion is “a unique act”). None of the other decisions cited by Roe and Casey involved the critical moral question posed by abortion. They are therefore inapposite. They do not support the right to obtain an abortion, and by the same token, our conclusion that the Constitution does not confer such a right does not undermine them in any way. (Draft Majority Opinion, p32)
In fact, Alito goes to considerable lengths in this opinion to avoid calling into question Lawrence, Obergefell, Griswold, or other conservative bogeymen in the postwar line of substantive due process cases.2 One of several passages where he does this is on p62:
Unable to show concrete reliance on Roe and Casey themselves, the Solicitor General suggests that overruling those decisions would “threaten the Court’s precedents holding that the Due Process Clause protects other rights.” Brief for United States as Amicus Curiae 26 (citing Obergefell v. Hodges; Lawrence v. Texas; Griswold v. Connecticut). That is not correct for reasons we have already discussed. As even the Casey plurality recognized, “[a]bortion is a unique act” because it terminates “life or potential life.”; see also Roe (abortion is “inherently different from marital intimacy,” “marriage,” or “procreation”). And to ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.
This is particularly interesting, because, while Alito wasn’t around for Griswold or Lawrence, he was around for Obergefell, and his dissent at the time was stinging:
Today’s decision will also have a fundamental effect on this Court and its ability to uphold the rule of law. If a bare majority of Justices can invent a new right and impose that right on the rest of the country, the only real limit on what future majorities will be able to do is their own sense of what those with political power and cultural influence are willing to tolerate. Even enthusiastic supporters of same-sex marriage should worry about the scope of the power that today’s majority claims.
Today’s decision shows that decades of attempts to restrain this Court’s abuse of its authority have failed. A lesson that some will take from today’s decision is that preaching about the proper method of interpreting the Constitution or the virtues of judicial self-restraint and humility cannot compete with the temptation to achieve what is viewed as a noble end by any practicable means. I do not doubt that my colleagues in the majority sincerely see in the Constitution a vision of liberty that happens to coincide with their own. But this sincerity is cause for concern, not comfort. What it evidences is the deep and perhaps irremediable corruption of our legal culture’s conception of constitutional interpretation.
Most Americans–understandably–will cheer or lament today’s decision because of their views on the issue of same-sex marriage. But all Americans, whatever their thinking on that issue, should worry about what the majority’s claim of power portends.
This guy thinks Obergefell is a pile of legal crap built upon a mountain of legal crap. Yet he strains (more than once) in his draft majority to distinguish the crap out of Dobbs so as to avoid hitting any of those other opinions.
You may say this is the act of a man trying to hold his majority. You would almost certainly be right! But that, in itself, is telling. Alito does not consider it practical or possible to call a broad range of substantive due process rights into question while simultaneously overturning Roe/Casey.
You may also say that Alito’s attempt to distinguish is legally unpersuasive. The fact that abortion extinguishes a human life is highly relevant to the moral consideration and will feature prominently in the legislative debates that follow if this draft becomes the Court’s decision—but the fact that abortion extinguishes a human life is not legally relevant to the question of 14th Amendment analysis in any obvious way. By terminating the line of cases that at least suggested a blanket right to bodily autonomy, all rooted in the 14th Amendment, this opinion would open that entire line of cases to new lines of legal attack. If challenged directly, the rights protected in each and every one of those cases could be subjected to reanalysis based on the East Cleveland/Glucksberg/Dobbs standard of 14th Amendment analysis, which examines whether the right is “deeply rooted in the nation’s history and traditions”—particularly whether it was protected at the time that the 14th Amendment was proposed and ratified.
This draft majority opinion, however, is neither the time nor the place to litigate that entire line of cases. Nor is this reddit comment! I will only note in passing (I expect uncontroversially) that the right to educate your children found in Pierce v. Society of Sisters is probably going to do okay under the Glucksberg test, but the right to sexual privacy found in Lawrence will have a much more difficult hill to climb.
The future, then, for this line of 14th Amendment cases seems cloudier than it did yesterday, but by no means dark. Many of these cases (in my view) have ascended to the American pantheon of “super-precedents:” cases whose outcomes are so universally accepted that they cannot possibly be overturned even if their legal rationales were completely wrong (as then-Professor Amy Coney Barrett explained in her wonderful paper “Precedent and Jurisprudential Disagreement”).
I’ll expand on that: the judicial system is designed as a set of fences ringed around other fences, all of which protect precedent and the status quo (even if it’s wrong). The sustained attack on Roe/Casey has required the coordinated effort of tens of millions of voters, hundreds of thousands of activists, vast sums of money, thousands of legislators, dozens of state governments, and five decades… and it may yet fail! Where’s the similar network that’s going to launch an attack on (checks the Draft Majority) Skinner v. Oklahoma and “the right not to be sterilized without one’s consent”? There isn’t one. Even if Skinner is wrong, it will stand forever, just like the Legal Tender Cases in Barrett’s paper.
So, for some of these decisions, I think they are really very safe because, even if challenged, they would pass the Glucksberg “history and traditions” test.
For some of the other decisions, I think they are still fairly safe, because they enjoy the best defense any legal precedent can have: insufficient (and insufficiently well-funded) interest in overturning them.
I’ll lay my cards on the table: I think Obergefell and Lawrence were wrongly decided. There is no legal basis for a constitutional right to same-sex marriage or consensual sex. There never was. Even if there were, Justices Stevens and Ginsburg were unfortunately forced to let Justice Kennedy write the majority opinion in order to secure his vote in both cases, and Justice Kennedy is a terrible writer and thinker, so the arguments in the majority opinions were much, much weaker than they could have been. (Solicitor General Verrilli briefly presented a much stronger, albeit still inadequate, argument for the outcome in Obergefell at oral arguments.) Both questions, according to our Constitution, should have been left to legislators to decide.
I also think Obergefell is basically safe, and that the core holding in Lawrence is safe as well. Unlike with abortion (where public opinion has been nearly static for five decades), the plaintiffs in Lawrence/Obergefell have won their case in the court of public opinion. Five years ago ago, there were, I think, only five states left where opposition to same-sex marriage still had majority support. Today, I think there are none. (I don’t have a source for this, sorry automod, so take it with a grain of salt.3) And support for same-sex marriage is still growing. It’s going to level out in the 90% range. States may still fight to chop off further extensions of Obergefell—cases like Pavan v. Smith (affirming that lesbian wife gets to be on the birth certificate of spouse’s biological child) might still arise, and might come out differently—but I just don’t see any political energy against SSM. It’s not 2004 anymore. There’s no way to assail a major Supreme Court precedent like that without lots and lots and lots of political energy.
Naturally, a country that has accepted gay marriage is not going to outlaw gay sex… especially not when doing so poses so many other interesting challenges to popular heterosexual sex practices. (Plenty of old laws against sodomy outlawed heterosexual oral sex, too!) I could imagine a future in which some states decide to revive laws against adultery (which were all disabled by Lawrence). Anti-adultery laws could end up being upheld in some far-future decision that overturns or (more likely) distinguishes and limits Lawrence… but, when you can only find 18% of Americans willing to outlaw consenting gay/lesbian relations, with that number in steady decline, and that’s before you ask whether they want to ban blow jobs as well… that’s a country where the decision in Lawrence is safe, whether or not the legal rationale for it is.
Q2: Is Alito allowed to base all this on the “history and traditions” test from Washington v. Glucksberg?
IANAL4 but it seems to me that Alito is relying heavily on the Glucksberg test without explicitly explaining why the opinion is sound. You might say, oh, well, stare decisis mandates that he abide by what the court said in Glucksberg. But Alito himself qualifies stare decisis in this opinion by saying “proper application of stare decisis required an assessment of the strength of the grounds on which <case> was based.” So he seems to be using stare decisis in the exact same way he laments its use in Casey. Not a good look.
Another weird thing about Glucksberg is that it was decided in 1997. Casey was decided in 1992. The court’s only change in membership during this period was that White and Blackmun left and Ginsburg and Breyer joined. Why would basically the same court opine in such a way to destroy a ruling from just 5 years prior?
The last thing I want to point out is that Alito contends that “Roe and Casey were wrongly decided”. Okay, so he must mean they were wrongly decided at the time, yeah? As in, years before Glucksberg was precedent? How can you use a future opinion that was not available to the court as it decided Roe and Casey to argue it erred in overlooking the logic behind that opinion?
A2
Okay, so he must mean they were wrongly decided at the time, yeah? As in, years before Glucksberg was precedent? How can you use a future opinion that was not available to the court as it decided Roe and Casey to argue it erred in overlooking the logic behind that opinion?
Ah, yes, fair question!
Glucksberg is not the first in a line of cases that endorsed the “deeply rooted in our history and traditions” test. It is just the one that has (for whatever reason) become canonical. (Officially, probably because it had the most careful analysis of the judicial principles that had been floating around for a long while before it. Unofficially, probably because it has the best pull quotes. 🙂 )
Glucksberg itself, for various versions of the “deeply rooted in history and traditions” quote, cites… deep breath, Rochin v. California (1952), Palko v. Connecticut (1937), Snyder v. Massachusetts (1934), Harlan’s dissent in Poe v. Ullman (1961), Griswold v. Connecticut (1965), Loving v. Virginia (1968), Roe itself (which engaged in historical analysis for the same reason Alito did: to find whether or not there was a Glucksberg-style deeply-rooted abortion right in our nation’s past), Pierce v. Society of Sisters (1925), Meyer v. Nebraska (1923), and Moore v. East Cleveland (1977) (which was probably the most important case for what would become known as the Glucksberg test prior to Glucksberg itself).
I’d include the quotes from each of those opinions, but it would take ages [and this post is plenty long enough]. Suffice to say that what we all today call the Glucksberg test is quite a bit older than Glucksberg (and, according to Glucksberg itself, it would have to be! if the test itself weren’t deeply rooted in history and tradition, it wouldn’t be a valid test!), even though it arguably achieved its clearest form in Glucksberg. Casey was, even in 1992, obliged to follow the prior case law, but mangled it severely.
IANAL but it seems to me that Alito is relying heavily on the Glucksberg test without explicitly explaining why the opinion is sound. You might say, oh, well, stare decisis mandates that he abide by what the court said in Glucksberg. But Alito himself qualifies stare decisis in this opinion by saying “proper application of stare decisis required an assessment of the strength of the grounds on which <case> was based.” So he seems to be using stare decisis in the exact same way he laments its use in Casey. Not a good look.
I can see how that would seem like not-a-good-look! A couple of points:
First, the Court typically only considers stare decisis when one of the parties either directly challenges a precedent, or unavoidably collides with one. Courts cannot possibly base every outcome on a from-first-principles reasoning of what the law is; every opinion would have to be longer than the U.S. tax code, proving everything from Marbury through the latest precedents over again! So they take precedents as read unless challenged. Challenge triggers stare decisis examination.
(Fun fact: I think, if you add them all up, fully one-fifth of all concurrences by Justice Thomas end up being short statements where he says something like, “The majority’s decision in this case is based on Precedent X. I think Precedent X is totally wrong possibly open to question in future cases. However, since the issue was not raised by either party, I agree that Precedent X sufficiently answers this question and concur with the Court’s outcome on that basis.” Anyway.)
In the Dobbs abortion case, Mississippi directly challenged Roe and Casey. It did not challenge Glucksberg. In fact, its brief to the Court relied heavily on Glucksberg. Jackson Women’s Health Org (the respondent) had the opportunity to reply to this. They could have challenged the Glucksberg standard, which would have forced a reconsideration of Glucksberg. Instead, respondents affirmedGlucksberg, by citing it in their own brief. So everyone agreed going in that Glucksberg was good law, and an appropriate standard under which to judge Roe and Casey. Roe and Casey were the only precedents challenged, so they went under the microscope.
In fairness to Jackson Women’s Health: that was almost certainly the right move. Glucksberg was unanimous in 1997, and I believe it would still be unanimous if re-decided today. (It did have five separate concurrences, though—for only four justices outside the majority!—so the Court was not in perfect agreement at the time.) The question was never Glucksberg‘s principles, but how they should be applied in this case.
Second, I think it’s worth considering what would happen if Alito did not follow the Glucksberg test. If he did stare decisis analysis of Glucksberg and decided to reject it, that would not really help Jackson Women’s Health. The Glucksberg Test is the means under current precedent by which unenumerated rights (such as the right to abortion) are recognized under the Constitution. If you blow up the Glucksberg Test, you either have to invent a new test on the fly out of whole cloth against quite a lot of precedent, or you have to say, “okay, no unenumerated rights from this line of cases at all!” That would foreclose the right to abortion right off the bat, and Alito would get to delete half his draft opinion. (I suppose he’d still need to deal with the “ordered liberty” claim later on.) So forcing Alito to do stare decisis analysis of Glucksberg would be very, very unlikely to help the right to abortion, and could potentially damage it quite badly.
Another weird thing about Glucksberg is that it was decided in 1997. Casey was decided in 1992. The court’s only change in membership during this period was that White and Blackmun left and Ginsburg and Breyer joined. Why would basically the same court opine in such a way to destroy a ruling from just 5 years prior?
That’s a question so many justices have asked of so many courts, so many times, in so many cases. Sometimes rightly, sometimes wrongly!
Justices are human and make errors and aren’t always consistent with their own principles. Sometimes, they even cite their own past cases in cases where they apply new principles that clearly contradict the old ones. Future justices then have to try and figure out / decide which decisions followed the continuity of precedent and which were deviations out of a messy history.
Also, Casey was a realllllly fractured decision. It was technically 5-4, but portions of the controlling opinion were only joined by 4—in some places just 3!—justices. There were 6 dissenters writing 4 separate dissents (although all 4 dissents concurred with some part of the judgment and/or the plurality opinion). Some dissents were from the “left” of the plurality, some from the “right.” Casey is therefore an example of a case where the Court reached a decision, but it had a very hard time deciding why that decision was correct (and pretty much everything about it was decided 5-4—some for the right, some for the left). Such fractured decisions tend to get clarified somewhat in later cases, as future, firm majorities decide which parts of the fracture become lasting principles and which are jettisoned as judicial jetsam.
It’s therefore not surprising to see a decision a few years after Casey that both cites Casey and is in tension with it. Casey was in a lot of tension with itself.
Q3: What was wrong with Lawrence and Obergefell?
You said:
I’ll lay my cards on the table: I think Obergefell and Lawrence were wrongly decided.
Could you expand on that? Do you mean with respect to the interpretation/ application of law, and if so what would have made a stronger case?
A3
Do you mean with respect to the interpretation/application of law
Yes, that is what I mean. Sorry, should have been clearer about that.
Could you expand on that?
I could, but I think the dissents in each case reflect my thinking better than anything I could write in the space of a reddit comment. There is a long tradition in American law of legally correct dissents losing to erroneous majorities, and I think the Lawrence and Obergefell dissents are part of that tradition.
You can skip Section I of Scalia’s dissent, though. That whole section is just him taking the majority for task for stare decisis hypocrisy in Casey. He and I and Alito and the Lawrence majority all basically agree with the stare decisis approach taken in Lawrence.
The Obergefell dissents are rather more complicated, with some of them critiquing the majority on narrow grounds and some on quite broad grounds. Frankly, I don’t want to reread all of them today to remind myself which parts of each were (in my view) correct. If memory serves, Roberts’ lead dissent aligned well with my thinking. Indeed, it follows similar contours as Alito’s Draft Majority for Dobbs: start with the Glucksberg test, point out that abandoning Glucksberg invites abuse, cite Lochner as an example and beat up on Lochner for a few pages, etc. etc. Sections I, II, and III are the relevant ones for our purposes. (Section IV is a critique of judicial arrogation of power, which isn’t analyzing the Constitution but discussing the consequences of doing it badly.)
That dissent starts on… agh, I don’t have the USR printing from the Library of Congress, but I have the slip opinion. Roberts’ dissent starts on page 40 of that PDF.
what would have made a stronger case?
Double-agh, I wrote a reddit comment about this years ago, but reddit search is SO BAD, and I can’t remember which part of Solicitor General Verrilli’s argument was the key one, and I’ve run out of time to check.
If memory serves, my basic suggestion was that the majority should cut absolutely everything about due process and focus solely on equal protection, rather than focusing mainly on substantive due process and treating equal protection as a real clouded afterthought. There’s a lot more grounding in Loving v. Virginia and the gender-equality cases of the 1970s/1980s than there is in the penumbral analysis of the substantive due process cases. Ginsburg was an Equal Protection Clause maven and could have (and probably would have) written that opinion, had she been free to do so. Verrilli definitely gestured toward it at orals, and then got dragged back to sweet-mysteries-of-life discourse with Anthony Kennedy.5
Q4: Isn’t consensual sex a protected “Privilege or Immunity”?
You say:
There is no legal basis for a constitutional right to… consensual sex.
What these fundamental principles are, it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole.
How could consensual sex not be covered under “the enjoyment of life and liberty” or “happiness”?
A4
I think the immediately preceding sentence from Corfield sheds some light on this:
We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign. What these fundamental principles are, it would perhaps be more tedious than difficult to enumerate…
The examples given are also instructive:
The right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the state; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions that are paid by the other citizens of the state; may be mentioned as some of the particular privileges and immunities of citizens, which are clearly embraced by the general description of privileges deemed to be fundamental: to which may be added, the elective franchise, as regulated and established by the laws or constitution of the state in which it is to be exercised.
(and, yeah, this is all from the paragraph quoted on Wikipedia, which as far as I can tell is the only paragraph anyone ever cites and the only one that has bearing on decisions today. Full decision is here, though, if you wanna look.)
These rights were all universally enjoyed and recognized by all the states, and had been since the dawn of the Republic. (They remain so today!) Was consensual sex a similarly situated right?
Corfield was a decision regarding a regulation in the state of New Jersey. At the time Corfield was handed down, all sex outside of marriage, consensual or not, was subject to regulation.
Fornication had not been a crime at common law, but the power of the sovereign to regulate it anyway was not questioned (and it was also regulated by the ecclesial courts, which were not powerless in England):
In the year 1650, when the ruling power found it for their interest to put on the semblance of a very extraordinary strictness and purity of morals, not only incest and wilful adultery were made capital crimes; but also the repeated act of keeping a brothel, or committing fornication, were (upon a second conviction) made felony without benefit of clergy. But at the restoration, when men, from an abhorrence of the hypocrisy of the late times, fell into a contrary extreme of licentiousness, it was not thought proper to renew a law of such unfashionable rigour. And these offences have been ever since left to the feeble coercion of the spiritual court, according to the rules of the canon law * * . [W. Blackstone, Commentaries, Book IV, Ch. IV, []64-65]
The state of New Jersey outlawed fornication in 1704. That law was in force in 1823, when Corfield was decided. The law against fornication continued in force in 1866-68, when the Fourteenth Amendment (which includes its own separate and more potent privileges & immunities clause, and is the one typically used for incorporating liberties against state action today) was proposed and ratified. The New Jersey statute would in fact remain in force until 1977, when it was struck down by… the New Jersey Supreme Court, which in turn was largely inspired by the Griswold/Roe/Eisenstadt/Carey/Danforth line of cases.
This is a pretty common story, with a wide variety of sexual crimes. The history in each state varied… some outlawed consensual fornication, some consensual adultery, some consensual heterosexual sodomy, some (all?) consensual homosexual sodomy (I don’t know my history on that one as well as I should), some several, or all four… but consensual sexual activity was simply not understood as a “fundamental privilege or immunity” which “belong, of right, to the citizens of all free governments.” The putative right to consensual sex certainly had not, “at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign.”
…or, at least, if there was a fundamental right to consensual sex, it was limited in scope to intercourse (not sodomy) within the bonds of (heterosexual) marriage. That’s a possible interpretation here.
All other sexual activity was subject to “such restraints as the government may justly prescribe for the general good of the whole.” Until fairly recently, a sovereign’s plenary authority to prescribe legislation for the moral health of its subjects was pretty nigh unquestioned. I disagree with a lot of it (although I’m actually a fan of the anti-adultery notion, at least in principle), but this was how they regulated it. If you were to argue that you need consensual nonmarital sex to enjoy “life and liberty” or “happiness,” I would imagine that most judges at the time would tell you that there was something deeply, deeply the matter with you, and that you needed to get your head on straight before you came back in their courtroom.
So consensual sexual activity was not understood to be a fundamental privilege or immunity at Independence (when we absorbed the English common law as the undercurrent of our future case law), it was not understood that way when the Constitution was proposed and ratified with the original “privileges and immunities” clause, it was not understood that way when good ol’ Bushrod Washington (at the end of his career, riding circuit solo) interpreted that clause for Corfield, it was not understood that way when the Fourteenth Amendment (which doubled down on the P&I clause and incorporated it against the states) came down, and no subsequent provision of the Constitution has changed that.
Thus, this concept cannot suddenly become a Privilege or Immunity under the Fourteenth Amendment when Lawrence shows up. The Lawrence court, rather than applying the time-honored principles of P&I interpretation dating back to Corfield, applied the even older judicial principle of making crap up. At least, that’s my view and, though not in so many words, the dissenters’ view as well.
To be clear and for the record: like Justice Thomas, I think that the law against homosexual sodomy struck down in Texas was a bad law and I oppose it. Had I been a legislator, I would have voted to repeal it. All I am saying is that the Supreme Court of the United States lacked proper authority to strike it down.
Q5: Isn’t consensual sex protected by the Ninth Amendment?
You speak at length about a lack of constitutional basis for these rights, but I wonder how you respond to the fact that the Constitution does not limit the people’s protected rights to those enumerated explicitly.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
~ 9th Amendment
This is, after all, pretty much an explicit statement of the “penumbra of rights” which stands as the real basis for most of these decisions.
(This should not be construed as a statement on the quality of the legal reasoning in those decisions, but rather a question about unenumerated rights conceptually)
A5
Great question. I have long felt that Justice Scalia’s dissent in Troxel v. Granville is the most succinct answer to the judicial question of the Ninth Amendment:
In my view, a right of parents to direct the upbringing of their children is among the “unalienable Rights” with which the Declaration of Independence proclaims “all Men … are endowed by their Creator.” And in my view that right is also among the “othe[r] [rights] retained by the people” which the Ninth Amendment says the Constitution’s enumeration of rights “shall not be construed to deny or disparage.” The Declaration of Independence, however, is not a legal prescription conferring powers upon the courts; and the Constitution’s refusal to “deny or disparage” other rights is far removed from affirming any one of them, and even farther removed from authorizing judges to identify what they might be, and to enforce the judges’ list against laws duly enacted by the people. Consequently, while I would think it entirely compatible with the commitment to representative democracy set forth in the founding documents to argue, in legislative chambers or in electoral campaigns, that the state has no power to interfere with parents’ authority over the rearing of their children, I do not believe that the power which the Constitution confers upon me as a judge entitles me to deny legal effect to laws that (in my view) infringe upon what is (in my view) that unenumerated right.
Lest you think I just read conservatives, here also is Justice Douglas (who wrote the Griswold majority) writing in his concurrence to Doe v. Bolton, the lesser-known companion case to Roe v. Wade:
The Ninth Amendment obviously does not create federally enforceable rights. It merely says, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
Douglas goes on to argue that unenumerated rights are enforceable through the Fourteenth Amendment’s due process clause, not through the Ninth Amendment (and then he gets on with listing which unenumerated rights he personally believes in). I like that quote, though, because it’s even shorter than Scalia’s. A bit conclusory, but what a beautifully clear statement of the situation: “The Ninth Amendment obviously does not create federally enforceable rights.”
However, it’s worth considering the alternative view anyway, because I think that alternative view shows its own absurdity rather quickly.
Let us suppose, for the sake of discussion, that our 9th Amendment rights were judicially enforceable. How would we determine what those rights actually are? There are so many candidates: the right to an abortion, the right to health care, the right to contract, the right to work, the right to sex with consenting adults, the right to refuse vaccination, the right to go whatever the hell speed I want on the highway speed limits be damned, the right to an education, the right to build what I want how I want on my property, the right to housing, the right to evict, the right to transport your property through federal territory even if your property is illegal in that territory (the issue in Dred Scott v. Sandford), the right to safety, the right to sex with consenting non-adults, the right of a father to his child (potentially a veto over the abortion right), the right to conscientiously object to paying taxes…
…and this list can really probably go on forever, because someone, on some reasonable-sounding theory, has advanced an understanding of liberty that nullifies any given law you care to think of or imagine.
How can judges decide which candidate rights are 9th Amendment rights and which ones are not? It seems to me that there are three possibilities:
Judges could take the view that all liberties proposed to be part of the 9th Amendment are, in fact, protected by the 9th Amendment, and act accordingly. This would impose a rather extreme form of libertarianism on the entire United States. Think Murray Rothbard, but constitutionally mandated. There would still be many conflicts between proposed rights, however (you can see several conflicts in that list), and it is not clear how they would be resolved. This—combined with the possibility of judicially enforceable positive rights—would effectively usurp and centralize plenary legislative and executive power (at all levels) within the federal judiciary.
A second alternative is to treat some proposed 9th Amendment rights as judicially enforceable, but only those which can be shown by historical analysis to have been recognized throughout our nation’s history, and especially when the 9th Amendment was ratified. In other words: 9th Amendment rights are judicially enforceable if they are “deeply rooted” in our nation’s “history and tradition,” to use the terms Alito and the court generally use when doing 14th Amendment analysis.
This ends up being no different from the Court’s existing 14th Amendment jurisprudence. It is different in theory from Scalia’s rejection of enforcing the 9th Amendment (because you would be recognizing some 9th Amendment rights as judicially enforceable), but in practice is identical (because you would only be recognizing rights as enforceable that are already recognized and enforceable under the 14th Amendment).
Finally, judges could decide that liberties proposed to be part of the 9th Amendment are part of the 9th Amendment if they (the judges) feel strongly that they should be. That may sound unfair, but, if the analysis is not tied to history & tradition, and it is not tied to doctrinal, consistent libertarianism, then any obvious criteria the justices might use to narrow their search for 9th Amendment rights are arbitrary and subjective.
This is… kind of where the U.S.’s current penumbral discourse is right now. It seems to be the premise of Heidi Schreck’s speech-that-thinks-its-a-play, What The Constitution Means To Me (available on Amazon Prime and a fascinating watch). This approach doesn’t centralize legislative and executive power in the judiciary like the libertarian view, but, because there are no clear standards, and a great deal of moral intuition involved, I think it very quickly reduces to what Alito in this draft (citing Powell in East Cleveland, citing Harlan in Griswold, citing Franfurter in Adamson) described as “freewheeling judicial policymaking.”
The judiciary ends up as a kind of super-legislature, with an ultimate veto over all other parts of government, based not on the law, but on the Court’s moral authority. This is all well and good if people who agree with you control the super-legislature—but, if people you don’t agree with control it, welcome back to the Lochner era, baby! Where minimum wage laws aren’t just rare: they’re literally unconstitutional because they offend the justices’ sense of morality!
Thus we see that all approaches that make the 9th Amendment judicially enforceable either go nowhere (#2) or go to very bad places and our republic turns into a juristocracy (#1/#3). This perhaps makes the conclusion that the 9th Amendment is not judicially enforceable quite a bit easier to swallow.
I add, finally, that the 9th Amendment says the rights it protects are retained, finally, by The People. The People are its final arbiters. If The People determine, collectively, that their rights are being infringed, they do have the power to make their rights judicially enforceable. This can be done by state or federal statute, or, where salutary, by constitutional amendment. Most of our 9th Amendment rights (like the right of both sexes to have equal access to public education) are indeed protected by statutes, passed through the democratic process (like Title IX), rather than by the Constitution.
Q6: Shouldn’t judges be flexible about unenumerated rights? [follow-up to Q5]
I appreciate the amount of time and thought you put into your comments, but I disagree with the foundation of it, which is that history and tradition is the end point. While history and tradition are valuable and powerful starting points (well, second steps after the text, but the issues at hand are textually vague enough that the text itself isn’t particularly helpful), they’re just that. Starting points.
The argument that you’re making seems to always end up at “what did the people who wrote this intend?” Yet it also ignores some major considerations. The authors of the Bill of Rights fully intended for there to be a robust set of personal rights that are unenumerated. Many of them didn’t want a Bill of Rights at all because they wanted to avoid the very issue we are dealing with now: arguments that a right not being explicitly enumerated means that it doesn’t exist. That was the entire point of putting the 9th Amendment in to begin with. Even the 10th Amendment ends with “or to the people,” though it seems like that clause has largely been ignored.
Additionally, at least some of the Founders explicitly stated that our institutions must “keep pace with the times.”
I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as a civilized society to remain ever under the regimen of their barbarous ancestors.
Thomas Jefferson
The Supreme Court, and their interpretation of the laws, would almost certainly fit under Jefferson’s statement as one of the institutions that must advance. So while history and traditions are important, so is progress and adapting to new cultural norms. Even in your own comments, that is why you state a number of other cases like Lawrence and Obergefell are unlikely to fall.
Trying to base one’s interpretation of Constitutional text on what the ratifiers of that text intended is, realistically, something of a fool’s errand. While it’s convenient to view Congress as a single, unified entity, that has never been the case. Some who signed to ratify did so believing that it would be constrained to the narrowest possible interpretation, while others signed with the expectation that more expansive interpretations would be used. The reality is that many parts of the various amendments are intentionally vague because the ratifiers wouldn’t agree on more precise language because they had to be able to see their own interpretation fit within the text. Whose interpretation, then, are we to follow as the intent?
Finally, the idea that the founders didn’t expect the courts to make law is historically inaccurate. America has always been a common law country. Early legislatures did (compared to later eras) very little lawmaking because the law was largely created through court precedent, created by judges. I would be very skeptical about claims that the writers of the Constitution, if asked whether the courts were able to identify and establish unenumerated rights, would say that that wasn’t part of the courts’ roles.
I won’t say that you’re wrong that there is no clear answer to the question of what unenumerated rights exist. But that doesn’t mean that, lacking clear and precise guidance, the judiciary cannot or should not try to find those answers. I think that your three categories are unnecessarily restrictive. The reality is that there is probably always going to be a blending of all of them. There will be influences of libertarianism, but not an extreme and unmoderated one. Rights underneath that approach are inevitably going to be constantly conflicting with one another, though, so the contours inevitably are shaped by balancing rights, and that approach is going to fail under certain arguments, including some of the hypotheticals you listed. History and traditions are going to be persuasive and the source of certain recognized rights, but not necessarily conclusive. The reality is that this country has a lot of problematic histories and traditions that shouldn’t be the source for either granting or taking away rights. And yes, there will times where judges’ moral judgments come into play, but that should also be tempered by the other considerations. The reality is that any any unwavering, inflexible system is not going to be able to handle all situations.
Are those difficult problems that the courts will have to tackle? Absolutely, but that’s why they are (at least theoretically) supposed to be impartial and highly skilled in order to get into those positions (though obviously that doesn’t always happen). And if the courts get it wrong, the legislature has the ability to take actions to correct that.
A6
The authors of the Bill of Rights fully intended for there to be a robust set of personal rights that are unenumerated.
Absolutely! But did they intend for those rights to be enforced by the unanswerable will of judges? That’s the question.
You say yes, these rights should be enforced by judges, not by voters, and you make an argument for that. It’s not an unreasonable argument. I don’t really see how you can say that Lochner was wrongly decided, given your argument, but perhaps that’s a price you’re willing to pay. I also don’t think your argument really deals with the text of the 9th Amendment, which really seems to track Scalia/Douglas’s interpretation better than yours, but perhaps you’re thinking more about how unenumerated rights should be handled in the abstract.
Instead of trying to refute your argument, let me instead ask you this:
Suppose Alito agreed with you. Rather than determining that history and tradition are the only reasonable basis upon which to base 14th Amendment rights, Alito and the other four in the majority begin determining the contents of the 9th Amendment and enforcing those rights on their own recognizance. Based on who they are and what they believe about law, life, and morality, they would obviously still decide that the right to abortion is not included in the 9th Amendment, so Roe would still fall.
But now your standard has unleashed four devout Roman Catholics and an Evangelical to find whatever they might look for in the 9th Amendment. How about a right to an education voucher, in lieu of everyone paying into the public school system? Or the right of a state to control their own territories, forcibly expropriating federal land used for nature preserves, etc.? Or the right of a spouse to be secure in the vows of his or her partner, unilaterally outlawing no-fault divorce?
If we are no longer bound to the text-history-and-tradition standard, but instead are permitting the justices to “tackle difficult problems” in freewheeling policy-making expeditions (like the one undertaken in Roe and the one undertaken in Obergefell), then it is pretty easy to come up with reasonable arguments for why all those things should be constitutionally mandated by the 9th and 14th Amendments. Sotomayor and Kagan and Co. would not find these arguments very attractive, but the current majority would!
Assuming these five judges honestly attempted to balance their perception of evolving cultural norms against the text and history and tradition and against their own moral codes, would you have a problem with that? If so, how could you fault them?
I would have a problem with that. I think justices are bound to follow the law, according to the meaning it had according to ordinary English speakers at the time of adoption. You are of course correct that there is still considerable wiggle room within that constraint, but it is a constraint—enough of one to prevent either the progressives or the conservatives from just imposing whatever policies they happen to feel are important on an unwilling nation.
And if the courts get it wrong, the legislature has the ability to take actions to correct that.
Well, no, they really don’t, and that’s the whole point. If a court interprets a statute wrong, the legislature can indeed correct it. But what you are proposing is that the Court interpret the U.S. Constitution very freely to include a wide range of things it doesn’t obviously say.
When a court gets the Constitution wrong, the legislature has no effective recourse. It’s options are: (a) court-packing (a short-term solution at best), (b) impeachment (inappropriate vehicle), and (c) constitutional amendment (extremely difficult even when supported by huge majorities: requires super-majorities in BOTH houses of Congress PLUS ratification by 75% of the states). That’s why it’s extremely important that the Court interpret the Constitution gingerly, and, as Alito argues in this draft (citing many other prior decisions that said the same thing), the Court must be quick to pull back when it interprets the Constitution incorrectly.
Q7: Isn’t that originalism? Doesn’t that have bad consequences?
You said:
So consensual sexual activity was not understood to be a fundamental privilege or immunity at Independence (when we absorbed the English common law as the undercurrent of our future case law), it was not understood that way when the Constitution was proposed and ratified with the original “privileges and immunities” clause, it was not understood that way when good ol’ Bushrod Washington (at the end of his career, riding circuit solo) interpreted that clause for Corfield, it was not understood that way when the Fourteenth Amendment (which doubled down on the P&I clause and incorporated it against the states) came down, and no subsequent provision of the Constitution has changed that.
This basically boils down to originalism. Which is fine and logically defensible, but
To be clear and for the record: like Justice Thomas, I think that the law against homosexual sodomy struck down in Texas was a bad law and I oppose it.
So what recourse would people have if the supreme court had not struck down these bad laws, albeit with non-originalist arguments? The states clearly would not repeal. Jim Crow could’ve lasted a lot longer. We continually see law passed by gerrymandered minority rule in many states, etc. In all those cases, bad law is allowed to persist because there is no constitutional protection, ignoring the fact that all prior decision makers would have supported said bad laws. Not to mention the only reason public opinion shifted so quickly is because bad laws were overturned. Otherwise, there’s nothing to say that bad laws wouldn’t have shifted opinion the other direction.
A7
So what recourse would people have if the supreme court had not struck down these bad laws, albeit with non-originalist arguments?
The same recourse the Founders expected to vindicate virtually all our rights: the ballot box.
We continually see law passed by gerrymandered minority rule in many states, etc.
Texas in 2003 was not a gerrymandered minority-rule state. The majority had the power to repeal the law. They should have done so. They did not. That’s on them. Fortunately, when the people do bad, there is recourse: ongoing democratic debate changes minds and ultimately leads to new legislation.
When the courts do bad — and, remember, historically, the courts do bad at least as often as they do good (Plessy, Schenck, the Insular Cases, Hammer v Dagenhart, Bradwell v Illinois, Dred Scott, Korematsu, Buck v Bell, Lochner, Minersville, and on and on and on) — there is no recourse save impeachment or constitutional amendment. Thus, as difficult as democratic-republican government is, it is usually better to vest decisional power in legislators and voters than in the courts.
The exception to that is Jim Crow, which was entrenched in so many ways that it prevented the democratic-republican system from functioning. Crushing that, through both federal legislative and federal judicial power, was appropriate. But I think that the great and well-deserved success of the civil rights movement has, to a large extent, warped our brains about how our system of government works when it is working best.
This basically boils down to originalism.
Do you think so? I am not convinced. While I confess that I am myself an originalist, the Glucksberg “history and tradition” test reaches back well before Glucksberg itself, and well before originalism emerged in the 1980s.
The Court that handed down Moore v. East Cleveland in 1977 had never heard the term “originalism” (which would not be coined until 1980), and would have mocked it openly had it been suggested to them. (They may have heard of Robert Bork’s 1971 paper, “Neutral Principles and Some First Amendment Problems,” which more or less kicked off the originalist movement, but they clearly did not agree with it.) Yet they endorsed the history and tradition test. Certainly the Courts which handed down Rochin and Palko and Snyder, in some cases generations before self-conscious originalism emerged (and long after self-conscious originalism had died), nevertheless supported the history-and-traditions test. The 3-justice concurrence in Griswold—a major case in the originalist anti-canon—relies on the history-and-traditions test pretty heavily!
I certainly agree that originalists get along very very nicely with the history and traditions test, and my view of it is likely skewed somewhat by my pre-existing commitment to originalism. But plenty of non-originalists have agreed with the Glucksberg test. (And plenty of originalists reject it: Justice Thomas, the Court’s unflinchingest originalist, rejects substantive due process rights altogether, although he’s willing to rebuild rather a lot of that infrastructure through the P&I clause.)
Not to mention the only reason public opinion shifted so quickly is because bad laws were overturned.
Not a huge deal, I guess, but I don’t think this is the case at all. Public opinion on same-sex marriage had been shifting rapidly since the 1990s, and continued to do so after Lawrence. (If anything, there was a bit of a slowdown around the time of Lawrence.) Meanwhile, in the years after Roe struck down all abortion laws, public opinion has not moved at all in the direction of abortion liberalization.
In my opinion, same-sex marriage advocates won in the democratic arena because (in the context of an America where heterosexual marriage was no longer centered on procreation, where contraception was a basic part of life, where divorce and remarriage had become commonplace, where both women and men now participated in the career world), the traditional definition of marriage simply made no sense anymore. “Traditional marriage” was no longer founded in anything Americans valued, and therefore the rationale for excluding same-sex couples from it no longer existed. In other words, same-sex marriage advocates won because they had the stronger arguments, and, as Churchill said, “You can always count on the American[ people] to do the right thing, after they have tried everything else.”
Q8: Does abortion really “extinguish” a “human life”? Can you cite sources?
The fact that abortion extinguishes a human life
I am not sure there is universal agreement this is a fact. Majority of Americans seem to believe otherwise, at least in the early stages of pregnancy. Can you cite an unbiased source?
A8
Sure!
The claim that a fetus is a human life is supported by:
Zygote. This cell, formed by the union of an oocyte and a sperm, is the beginning of a new human being. The expression fertilized ovum refers to a secondary oocyte that has been impregnanted by a sperm; when fertilization is complete, the oocyte becomes a zygote.
—Moore and Persaud, Before We Are Born: Essentials of Embryology and Birth Defects, 7th Edition. Philadelphia: Saunders, 2008. p.2.
“In that fraction of a second when the chromosomes form pairs, the sex of the new child will be determined, hereditary characteristics received from each parent will be set, and a new life will have begun.”
—Kaluger and Kaluger, Human Development: The Span of Life. St. Lous: C.V. Mosby, 1974. p.28-29
“Although life is a continuous process, fertilization (which, incidentally, is not a ‘moment’) is a critical landmark because, under ordinary circumstances, a new genetically distinct human organism is formed when the chromosomes of the male and female pronuclei blend in the oocyte.
—O’Rahilly and Müller, Human Embryology and Teratology, 3rd Edition. New York: Wiley-Liss, 2001. p.8.
The claim that abortion extinguishes that human life is, I trust, uncontroversial.6
Much of the debate among Americans about abortion is not about whether the human life being extinguished is human or alive. That question is biological, and has been conclusively answered since the early nineteenth century.
Rather, the American abortion debate is largely about whether the human life extinguished is a person with moral value and/or a soul. This is a philosophical question. The Casey decision purported to decide for the entire American people that no legitimate answer was possible. The Dobbs draft majority opinion has no answer to that question, and does not attempt to address it at all, but rejects Casey’s assertion that the courts have the authority to foreclose democratic debate over it.
Q9: But zygotes aren’t fetuses and souls are not justiciable. [follow-up to Q8]
Thank you for providing sources. I believe some of the controversy does still exist in that a zygote is not a fetus and there is a large difference between an actual human life, and a clump of cells that might eventually become a human life. I do not think the majority of Americans would agree that in the moments after fertilization, but prior to implantation for example, that there is another human life yet.
When a soul is created, or whether souls exist at all does not seem like the kind of question any US court should be addressing. Not even all major religions agree on this point. And a great many apparently soulless individuals seem to go about their lives notwithstanding.
A9
When a soul is created, or whether souls exist at all does not seem like the kind of question any US court should be addressing.
Yes. This is precisely Justice Alito’s point when he criticizes Casey‘s decision to address that question.
I do not think the majority of Americans would agree that in the moments after fertilization, but prior to implantation for example, that there is another human life yet.
That may be the case. I haven’t looked at polling for this recently. Nevertheless, with all due respect to the American people, they are objectively and demonstrably wrong. Human life begins during or just after conception. The American people are entitled to their own opinion about whether or not that human life has any value or rights, but they are not entitled to their own facts on the biological question of whether the zygote is a living human organism.
As a language note: “fetus” is colloquially used to refer to human lives at all stages of prenatal development (zygotes, embryos, fetuses). You are correct that this is medically inaccurate, because these are all technically different stages of development.
However, the correct, scientifically accurate English word for a human at any stage of prenatal development is “child” or, specifically, “unborn child”. Many people find this terminology needlessly inflammatory. So I tend to use the colloquial “fetus” instead.
Q10: Calling the fetus alive is absurd!
The question is nowhere near as settled as you make it out to be. An embryo doesn’t meet one of the key criteria for life: the ability to maintain homeostasis. Organisms must be able to maintain a stable internal state, take in nutrients, emit waste and maintain various biological functions. Since a fetus cannot do this without the mother, its status as alive independent of the mother is debatable. In this regard, a fetus is a part of the mother, just as much as her arm is.
You base your argument in genetics, but there’s documented cases of, for example, human chimerism: one person has two different sets of DNA.
Under this argument, this seems like someone with chimerism would legally be two people: they’d have two votes, if they were murdered, it’d be a double homicide. This is IMO a kind of silly result.
Similarly, if we consider a human to be a cluster of cells that share DNA, then there are cultures of human cells, with human genes that are continually grown in a petri dish even though the donor is long since dead. I don’t think that we would consider Henrietta Lacks to be alive just because there’s cells of hers that continue to exist in petri dishes around the world.
A10
The question is nowhere near as settled as you make it out to be.
The view I have stated is the overwhelming consensus of professional biologists in the academy today. (Source) This is settled science. (That’s one reason why I was able to cite biology textbooks stating my thesis clearly, and you were not.)
Now, settled science—like settled law—can be unsettled by new developments and new ideas. Perhaps, someday, your view will be vindicated. But your view, today, can be characterized, at best, as quixotic.
An embryo doesn’t meet one of the key criteria for life: the ability to maintain homeostasis.
Yes, an embryo maintains homeostasis. I would be interested in seeing an expert scientific source that claims otherwise.
Homeostasis is the maintenance of a consistent internal environment. It is not freedom from external dependency, as you seem to have misunderstood it. If it were, quite a lot of living things would suddenly stop counting as alive. Tapeworms, for example, cannot survive without a host. This does not make them part of the host organism. It does not erase their status as living tapeworms.
You base your argument in genetics
To be clear: I do not base my argument in genetics. The scientific community invests considerable importance in genetics, and I am informing you of its view.
(My own personal view of the beginning of life is much more Aristotelian. While the scientific community considers human life to begin at or around syngamy, at the end of the roughly 24-hour fertilization process, I personally think human life begins at cell fusion, at the very start of fertilization. My personal opinion, however, is neither here nor there.)
Under this argument, this seems like someone with chimerism would legally be two people:
Although the scientific community places more importance on genetics than I do, this substantially overstates their view. Every set of DNA is not its own person. Every human organism is its own person, and, here on Earth, DNA is a typical telltale of status as an organism.
Similarly, if we consider a human to be a cluster of cells that share DNA, then there are cultures of human cells, with human genes that are continually grown in a petri dish even though the donor is long since dead.
This, again, overstates the DNA-centricity of modern embryology — although it is a somewhat common mistake. I have heard similar objections raised about human toenails and human cancers, all of which share human DNA and which are (at the cellular level) alive as well. Yet very few people would say that a human cancer is a living human organism.
So what distinguishes a human zygote (or, for that matter, a human eight-year-old) from a human toenail? For purposes of a brief comment, let’s point to two key differences: growth and reproduction.7
Toenails grow. So do eight-year olds. But what do they grow into? If properly nourished, eight-year-olds will grow, of their own accord, into adults of the species homo sapiens. Toenails, if properly nourished, will grow, of their own accord, into… longer toenails. This is a strong indication that eight-year-olds are homo sapiens, while toenails are not: you cannot grow into an adult homo sapiens unless you are already a child belonging to homo sapiens.
Cancers grow. So do zygotes. But what do they grow into? If properly nourished, zygotes will grow, of their own accord, into adults of the species homo sapiens. Cancers, if properly nourished, will grow, of their own accord, into… more cancer. This is a strong indication that zygotes are homo sapiens, while cancers are not: you cannot grow into an adult homo sapiens unless you are already a child belonging to homo sapiens.
Not even individual sperm and egg cells will grow, on their own, into adult humans; they will merely undergo meiosis. Only by combining the two, destroying them in the creation of the new zygote organism, will you get an entity that is destined to become an adult human.
Let’s now consider reproduction.
Do toenails and cancers reproduce? No. (Cancers metastasize, but that’s not the same thing as reproduction.) This means that neither toenails nor cancers are actually alive, much less living human beings. (Individual toenail and cancer cells are alive, sure, but, all together, they do not form a living organism… because actually living things, by definition, can reproduce themselves.)
Do eight-year-old human children reproduce? No, not yet. However, they are developing the capacity to reproduce, a capacity written into their genetic code. When they eventually hit puberty, finish growing up, and get married, most eight-year-olds will reproduce. And to what will they give birth? Tiny members of homo sapiens, of course. A good rule of thumb in biology: if your babies are horses, you’re probably a horse. If your babies are human beings, you’re probably a human being. Today’s eight-year-old kids will give birth to tomorrow’s human beings. This implies that the eight-year-olds themselves are human beings.
Do zygotes reproduce? No, not yet. However, they are developing the capacity to reproduce, a capacity written into their genetic code. When they eventually hit puberty, finish growing up, and get married, most zygotes will reproduce. And to what will they give birth? Not horses. Not toenails. Not gametes. Babies. Today’s zygotes will give birth to tomorrow’s human beings. This implies that human zygotes are themselves human beings.
Of course, many zygotes die before they become adults. However, many eight-year-olds also die before they become adults. This does not make them less human. It just makes them less fortunate.
Q11: But most zygotes die!
But what do they grow into? If properly nourished, zygotes will grow, of their own accord, into adults of the species homo sapiens.
Obviously I’m not disagreeing with this statement, but it does make me wonder, not EVERY pregnancy grows into a viable Sapien. Around 10-20% of pregnancies in the US end in a miscarriage. I don’t think it would be easy to prove that this is solely due to mistakes made by the mother during or before pregnancy (smoking, drinking physical activity, a million things could contribute both before and after fertilization). Its possible, and very probably imo, that some women miscarriage due to no fault of their own. In states where abortion will now be illegal, will mothers who miscarriage be subject top scrutiny under anti-abortion legislation? Though that is approaching having to prove intent which I dont care to get into.
Do zygotes reproduce? No, not yet. However, they are developing the capacity to reproduce, a capacity written into their genetic code. When they eventually hit puberty, finish growing up, and get married, most zygotes will reproduce.
The bodily autonomy argument revolves around the idea that a Zygote CANNOT do these things without the mother carrying the zygote to term (or viability), which you conveniently dont mention. I think its incorrect to say that “Today’s zygotes will give birth to tomorrow’s human beings.” because the “human life” that is a zygote is incredibly simple and cannot do any of the things we (and you) attribute to a human life.
A11
Around 10-20% of pregnancies in the US end in a miscarriage. I don’t think it would be easy to prove that this is solely due to mistakes made by the mother during or before pregnancy
Oh, it would be flatly impossible to prove this, because it would be false. The overwhelming majority of miscarriages, according to my understanding, have absolutely nothing to do with the mother’s behavior. Many of them have nothing to do with her body, either; lots of young fetuses simply can’t hack it in the difficult environment of real life, and they die. The percentage is, as you say, pretty high. In fact, it’s higher than you think. About 10-20% of known pregnancies end in miscarriage. Many pregnancies are unknown. The total miscarriage rate is very probably over 50%.
Therefore, the majority of zygotes do not develop into an adult member of species homo sapiens. Most zygotes do not reproduce.
However, until about a century ago, more than half of born children died in infancy (before the age of 2). Infant mortality at the time was similar to zygote mortality is today. A one-year-old cannot reproduce any more than a zygote, they are incredibly simple and cannot do any of the things we typically “attribute to a full human life” (have you seen a baby recently? they hit themselves in the face sometimes because they literally cannot figure out that they have hands!), and most of them died anyway.
So I think that your second paragraph proves too much. Your criteria for human life appear to exclude infants from the category of living humans (at least, infants living before the 20th century). I trust we agree that this would be a fairly absurd result.
In states where abortion will now be illegal, will mothers who miscarriage be subject top scrutiny under anti-abortion legislation? Though that is approaching having to prove intent which I dont care to get into.
I think the enforcement of infanticide laws prior to the development of antibiotics is instructive here. Most kids died. My understanding, however, is that very few murder investigations were opened. The law is imperfect, but it’s not completely stupid about telling the difference between the routine death of a child and a possible murder.
Of course, the law is shaped by legislators, who are in turn shaped by voters. The future (if Roe falls) is up to the voters in each state. At least for the time being, anti-abortion laws pushed by (for example) the AUL are pretty consistent about completely excluding mothers from civil or criminal liability in abortion-adjacent cases. When mothers are investigated or prosecuted for miscarriage in 2022 America, it is typically done using either pre-Roe statutes or creative application of other statutes that were not originally envisioned to apply to pregnancies.
Thank you for your time and effort.
Thanks for a stimulating conversation!
Q12 [Bonus!]: Is the Draft Majority an originalist decision?
[No one asked me this question, but I wish someone had.]
At no time does Alito examine the Original Public Meaning of the relevant constitutional texts. (Nor did either party to the case.) His opinion is written entirely within the cozy confines of 20th-century substantive due process precedent. Justice Alito does his homework, he proves his case, he applies the precedents consistently to abortion law for the first time in decades, but he doesn’t “do” originalism here.
A truly originalist opinion would look very skeptically on “substantive due process” rights in general. (See Justice Thomas’s dissent in Obergefell: “Even if the doctrine of substantive due process were somehow defensible—it is not—petitioners still would not have a claim.”) This could bring down the entire line of cases, from Pierce v. Society of Sisters on parental rights in education to Obergefell’s guarantee of same-sex marriage.
Instead of going the originalist route, all Alito does is show that, according to existing Court precedents, “substantive due process” rights must be “deeply rooted in our nation’s history and traditions,” and the so-called right to abortion is not and never was deeply rooted in anything but Justice Blackmun’s will-to-power. For this argument, Alito mostly relies on precedents from the anti-originalist 1930s through the 1970s—including some of the conservative bogeymen like Griswold—in order to show that Roe was egregiously wrong even by its own standards.
This is why I’ve been calling the Draft Majority a surprisingly narrow decision. It puts a bullet between the eyes of Roe v. Wade, but lobs no grenades into the Court’s 14th Amendment jurisprudence generally (and in fact strains not to). This doesn’t prevent future originalist critiques of the Court’s 14th Amendment jurisprudence (if it did, Thomas and probably Gorsuch wouldn’t join this opinion), but makes no moves to advance those critiques, either.
It is a sign of just how badly reasoned Roe v. Wade and its sequelae were that Alito is able to so thoroughly dismantle them on their legal “home field,” without borrowing anything from originalist critiques. It is likewise a sign of just how bad a judge John Roberts is that he has not already joined this painfully narrow and plainly correct opinion.
Closing Thought
This is just something I found interesting. This discussion was entirely on Reddit. My top reply was heavily upvoted and received a couple “Reddit Gold” awards, which was gratifying. Most of my legal answers were also well-received.
But my answers on the scientific questions of embryology—where the answers are much easier than in the legal realm, the science is absolutely “settled,” uncontested citations supporting my position far more readily available, and the fact of the matter obvious to anyone with eyeballs (no legal degree required)—were all rated “controversial,” receiving upvotes and downvotes in almost equal proportion.
I think this suggests something interesting: even here in 2022, after a full generation of ultrasounds making the humanity of the fetus obvious, a full generation of Violinist Arguments trying to distract us from the humanity of the fetus… the other side still intuitively senses that the humanity of the fetus is the crux of the abortion debate, and still maintains the strongest mental fortifications against that claim. Even as I conceded that the humanity of the fetus and the personhood of the fetus were separate questions, still they resisted the evidence most strenuously.
I’m not sure what can be done about that. I proved my embryology case far more conclusively than any of my interlocutors (which was easy, because the embryological evidence is well-known and uncontested), but I still ended up rated “controversial”. Most of the people doing downvotes didn’t bother to reply. (What could they possibly say?) They just hit the downvote button and went back to thinking they aren’t accessories to murder.
Here’s my preliminary takeaway from this. One key reason pro-lifers are, slowly but steadily, winning right now is because we are correct about the humanity of the fetus, our arguments on that are unanswerable, and many on the other side recognize (deep down) that all the rest of it—“personhood” and autonomy and Equal Protection and so forth—is all just a sideshow. At some level, most of them know, as we do, that (brain waves and “personhood” aside), those are our children, and nothing, not even autonomy, could justify the slaughter of 60 million innocent children and counting.
“Substantive due process” is the legal theory that the 14th Amendment’s guarantee of “due process of law” guarantees not just procedural protections like a right to a fair trial, but a wide range of human rights, even though those rights aren’t listed in the Fourteenth Amendment, and the Fourteenth Amendment’s authors didn’t understand any of those rights to be included in their amendment.
I still don’t have a source for this, but, eight years ago, I noted that only 18 states still opposed same-sex marriage. If same-sex marriage supporters can get it down to 12, they can pass a constitutional amendment protecting it.
On further reflection, this may have been in United States v. Snyder, not Obergefell, but same difference. I really should dig up the passage I’m thinking of.
At least, it is uncontroversial according to the ordinary English definition of “abortion.” According to various specialized medical definitions of abortion, which vary widely, the removal of an already-dead fetus from a uterus may constitute abortion.
Also, in some definitions, normal live childbirth is an abortion, since birth does “terminate of a pregnancy.” In these cases, obviously, abortion does not extinguish a human life. However, I trust we can all agree that the “right to abortion” at stake in Roe, Casey, and Dobbs is not about the right to remove a dead fetus or the right to give birth. Rather, this line of cases is about the putative constitutional right to remove a live fetus and, in the process, turn it into a dead one.
In all my comments, I am referring to abortion in that sense.
(Most of these footnotes are new today as I create the blog post, but this footnote was in the original discussion!)
I can’t give you the full review here, because, y’know, I wrote it for them and they paid me good money for it and they deserve your clicks.
However, the article is free, very nicely typeset in a rather gorgeous font, and there’s no paywall. It’s exactly the kind of thing I would have written for De Civitate, except I wrote it for Law & Liberty. Here’s a sample, then read the whole thing:
Max Holleran’s new book, Yes to the City, chronicles a hot front in the culture war. The battle rages through every city in the land. The outcome will shape America’s future more than inflation, covid, or the war in Ukraine.
I speak, of course, of zoning codes.
You seem unconvinced. Yet city planning touches every part of our lives, and there is a rich, albeit neglected, conservative literature on the topic. Obdurate towns, hoping to shield themselves from change, have built regulatory mazes that serve as potent weapons in the hands of any canny culture warrior. The result: fissures in American society between young and old, rich and poor, Right and Left.
In January 2020, Guiding Star Wakota, a crisis pregnancy center serving moms in the independent city of West Saint Paul, Minnesota, sought to expand its overcrowded facilities. It wrote up exhaustive plans for how the project would meet each rule of my hometown’s sprawling zoning code, and requested only one small variance: an exception to its parking minimums. West Saint Paul’s code required Wakota to have 37 parking stalls. Everyone knew the requirement was absurd for this lightly-trafficked facility, and variances were granted as a matter of course to projects of all kinds. (The city cut the requirement by half zonewide barely a year later.) Wakota reasonably expected smooth sailing when they sought approval with only 29 stalls.
Instead, dozens of locals, who opposed Wakota’s mission, persuaded the commission to reject the plan. Wakota desperately struck a parking deal with a neighbor, withdrew its request for a variance, and, backed by hundreds of locals, appealed to the City Council. City Council members did all they could to block it, but, faced with the threat of a lawsuit they would lose, they chose acquiescence.
Yet it all hinged on Wakota making that lucky, last-minute parking deal. If they had not, the City Council majority would certainly have denied the variance, and the moms Wakota serves would be out of luck. Naturally, the Council would have rubber-stamped the variance for anyone else. They just hate crisis pregnancy centers.
As I dug deeper into city planning, I learned this is totally normal.
NOTE: This post was originally published at my Substack. The footnote links go there instead of to the bottom of the page.
Welcome to Dashed-Off Daily Dobbs upDate, an exciting feature where I react to the latest news in American abortion law real fast, without (many) links or footnotes. Or editing.
Last night, I read Sam Alito’s draft majority opinion So You Don’t Have To. I stand by that analysis. As the new day dawns, I’m finding it fascinating how few people are actually criticizing the substance of the draft opinion. Twitter People were mad about some typos (it’s a first draft!) and Alito’s use of the word “abortionist” instead of the euphemistic “abortion provider.” Elie Mystal was ventilating about alternative constitutional defenses for abortion. But nobody has anything interesting to say about the content of the decision—because the decision is quite good! (And the thing it’s overturning is obviously terrible!) Adam Serwer at The Atlantic1seemed to consider it important to at least ape criticism of the decision, but expressly starts his piece by saying he will be glossing over the details. He quickly misquotes Alito as making a comparison between Roe and Dred Scott (a comparison which, as I noted last night, Alito conspicuously avoided) before getting on with an atextual, unevidenced, unhinged screed. The comparison between Roe and Dred Scott came from Serwer’s own mind, not Alito’s pen, and I think that’s rather telling.
I was planning to start out today by telling you why I think the document is authentic, even though Alito’s usually bombastic voice seemed a restrained to me.
But no need! As I settled in for work at my day job today, the Supreme Court confirmed the authenticity of the document and launched an investigation (headed by the Marshal of the Supreme Court, not the FBI as had been rumored). Will they catch the guy (or gal?). I suspect they will. I don’t honestly think Supreme Court personnel have the tradecraft to know about tracking dots, much less all the other ways a leaker can be caught. We aren’t dealing with Deep Throat, here. We’re dealing with elderly people who struggle with their emails (the justices), whelps fresh out of law school who think they know things but don’t (clerks), and support staff (voted Most Likely To Get Away With It by a jury of me one minute ago). Their best hope of staying hidden is that Joshua Gerstein and Alexander Ward at Politico helped them figure out how to stay hidden.
It’s true that no Supreme Court leaker has been caught red-handed before, but there’s never been a leak like this before. It’s true that the Marshal of the Supreme Court has only limited power, but… oh, shoot, I’m talking myself out of this, aren’t I?
Whether or not we ever learn the leaker’s identity, it seems worth speculating about who did it and why. Also: why leak it to Politico? Why leak a draft from February? How did the leaker know the vote count? This whole post is speculation, but I did wild speculation about Dobbs almost exactly one year ago, and that post has held up pretty well. Let us consider our suspects:
A Progressive Clerk/Justice
Everyone’s mind went here first, right? Some shrill activist who used to try to shout down Federalist Society speakers at Yale Law School got picked to be a Supreme Court clerk. Like all the progressives, this clerk was alarmed by the initial vote to overturn Roe/Casey back in December, but resolved to wait and see whether Chief Justice Roberts could pick off one or more of the conservative justices for a weaker decision that erodes Roe/Casey without destroying it. On Sunday, at (or just after) the April 29th private conference of the justices, Court personnel learned that Roberts’ intense lobbying effort had failed. The Alito decision—still unthinkable to many progressives2—would stand.
Enraged by Justice Alito’s “extreme” decision,3 deluded enough by pro-choice propaganda about the popularity of Roe to think that leaking the decision would cause a major backlash and force the justices to reconsider, this person immediately sought out Gerstein and Ward, both of whom are reliable, friendly, establishment center-left progressives. The leak was published less than 36 hours after the conference.
A clerk who did this would have to be unbelievably arrogant to expect to get away with it. If caught, any Supreme Court clerk would be dismissed with a bad recommendation, will not be hireable, and may well be disbarred. Criminally prosecuted? Not out of the question.
A justice who did it, however (my mind went to Sotomayor, perhaps unfairly) might do this to make a statement—a declaration of war on her conservative colleagues, a renunciation of all norms in pursuit of (her vision of) justice. A justice would face no professional consequences for this. Impeachment is not on the table. There are not 17 Democratic votes in the Senate to convict any jurist for leaking this, and their base would crucify them if they tried. It’s therefore not out of the question that one of the justices did it.
Means: The leaker prints a copy of the Alito opinion on the office printer, hand-delivering it to Gerstein and Ward, whom the leaker views as friendly. Gerstein & Ward scan and post the document. In an off-the record interview, the leaker also gives them the details of the vote count.
Motive: To generate a political backlash, based on the belief that Roe/Casey are overwhelmingly popular with the American public. (This belief is mistaken, but that doesn’t change the motive!) The aim of the backlash would be to either pressure a conservative justice, probably one whose initials are BK, to change his vote and save Roe; or to persuade Senate Democrats to pack the Court; or to mobilize Democrats for the midterm elections; or to inspire political violence against conservative members of the Court, either intimidating them or harming them so that they are unable to vote against Roe/Casey.
Opportunity: Supreme Court justices and clerks have reasonably full access to the Court’s circulating opinions. They also are theoretically the only people alive who know the vote counts. Most of them can probably use a printer, although I’m not too sure about Breyer.
Problems:
Why give Gerstein and Ward an opinion from three months ago, rather than the most recent draft (which is probably from this week)?
Why risk your entire career (you could be disbarred!) and destroy the internal trust of the whole Supreme Court to publish information that’s coming out in six weeks anyway? If the Democrats are going to be galvanized by this, they’ll be just as galvanized in June as in May.
Indeed, if anything, this actually weakens the overall political backlash against the decision. Leaking it makes the leak itself the center of the story, it catches abortion zealots laying the political groundwork for a backlash off-guard and too early, and it blunts the impact of a single dramatic day where Roe/Casey are overturned by stretching it out over weeks. It certainly makes it harder for Kagan to write a stirring dissent about the impact on the Court’s “legitimacy,” because the cat will already be out of the bag by then, any legitimacy damage already done!
On the other hand, if the goal is to flip a conservative’s vote—say, to get Kavanaugh to back off of full repeal and side with Roberts on a less sweeping decision—how could this approach be worth the costs? Progressives almost universally believe right now that a Roberts split-the-baby decision would still effectively overturn Roe/Casey and is just as bad (if not worse) than an Alito decision that actually overturns Roe/Casey. Did the leaker seriously believe they could push Kav + Roberts all the way to upholding Roe/Casey? Is the leaker that desperate? Or just that angry?
Final question: why would the leaker expect a leak to change a justice’s vote? The initial vote has already been leaked. Any changes from here on out would inevitably be seen as flip-flopping in the face of political backlash. Certain justices are desperate not to be hated, but even more desperate not to be seen as politically motivated flip-floppers—Kavanaugh more than most.
A Conservative Clerk/Justice
As we’ve just observed, leaking this decision actually benefits the conservatives in several ways. It minimizes and confuses the backlash against a down-with-Roe decision. It weakens the dissent. It may “lock in” wavering justices in the majority by making them fear looking like flip-floppers.
So maybe a conservative did it!
Like all the conservatives at SCOTUS, this hypothetical conservative clerk (or justice?) was overjoyed by the initial vote to overturn Roe/Casey back in December. On Sunday, however, at (or just after) the April 29th private conference of the justices, Court personnel learned that Roberts’ intense lobbying effort to pick off one of the conservative justices had succeeded. The Alito decision—the basic holding of which is, for conservative textualists, non-negotiable—would be abandoned in favor of a weaker opinion by Justice Roberts. This opinion would allow the Mississippi ban to stand but would not directly overturn Roe/Casey… but, since this is facially impossible under Roe/Casey, such a decision would inevitably have to reaffirm and retrench the supposed right to abortion even deeper in American constitutional law.
Disgusted by this outcome, knowing conservatives would share this fury if they could only see what was happening, our leaker goes to Politico and gives them the document. This leak proves that all five conservatives were on board with ending Roe/Casey at some point. (This would explain why the draft opinion is dated February: the current version has been watered down, this was discovered at the Sunday judicial conference, and this leak is revenge.)
If a decision then comes out in June that doesn’t end Roe/Casey, or is otherwise watered down from the February first draft, conservatism will excommunicate the defector and go to war with everything the defector ever loved.4 That would face the defector with a difficult choice, and perhaps cajole him into sticking with the majority after all.
Means: Same as above.
Motive: To blunt the political impact of the ultimate decision by smearing out the reaction across several weeks, and/or to stiffen the spine of a wavering conservative.
Opportunity: Same as above.
Problems: This plan all sounds very smart… except what happens when the leaker is caught? The backfire risk here is extremely high. If the Alito opinion was leaked in order to pressure a conservative defector to return to Alito’s majority… and word of that gets out… then it will make it politically and perhaps ethically impossible for the defector to come back into the fold. Was the leaker just so arrogant he assumed he’d get away with it?
Also, what self-respecting conservative would leak to Josh Gerstein and Alexander Ward? The last time there was a leak on the conservative side of the Court was in 2012. (Interestingly, that leak, according to rumors, came from Alito’s chambers—either Alito or one of his clerks.) They leaked it to National Review, a conservative magazine run by conservatives, not a faux-centrist magazine that wet its collective pants when Ben Shapiro wrote Playbook one day. That’s how a conservative leaks! What, was the leaker trying to cover his tracks by going to these guys?
Breyer
He’s retiring, so he has nothing to lose! Why not leak Dobbs?
This theory is actually very bad. Yes, he’s retiring, but he’s Stephen Breyer. Leaking this decision would violate every principle he holds dear, it would go against his entire philosophy of the Court, and would deeply offend him personally. His whole book last year was basically, “Don’t pull crap like this,” and I think he meant it. I don’t think much of Breyer’s jurisprudence, but he’s an honest broker.
Roberts
Some people just want to watch the world burn! Roberts has been trying to pressure one of the conservatives into voting his way. (He wants to weaken Roe/Casey, but not directly overturn them.) Perhaps he thought this would add to the pressure. Or perhaps—I like this idea better—perhaps Roberts has succeeded in hammering out a weaker majority or plurality opinion, one that perhaps guts Roe/Casey while technically leaving them on the books. The Left was primed to freak out about a decision like that as effectively overturning Roe. But if Roberts leaks this earlier, much harsher draft opinion first, maybe that new and softer opinion would be better received, right?
This would be very stupid, almost certainly would not work, and would violate every principle John Roberts has ever professed. He would be destroying the Court’s “legitimacy” and “norms” in order to save them. However, John Roberts is prone to self-delusion and, unlike Stephen Breyer, John Roberts has little integrity. I think this theory is very unlikely, but not outright bonkers.
Also: the prevailing theory for why Roberts put the Marshal of the Supreme Court in charge of the investigation, instead of calling in the FBI, is because he didn’t want to subject the entire Supreme Court staff to FBI interrogations. There are a lot more secrets the Court needs to keep, and outsourcing to the FBI puts those secrets at risk. But another explanation for Roberts avoiding the FBI is because he doesn’t want to get caught. He has to be seen doing something about the leak, but wants the investigation to die quietly. The FBI would catch him. He can almost certainly ensure the Marshal does not.
Support Staff
The 1973 Supreme Court leak was probably an employee at the Government Printing Office, not in the Supreme Court building at all. Also, as a member of I.T. staff at a medium-sized organization, I can assure you that, while most I.T. staff at the Supreme Court can not access this document, some definitely can… and those who can could also cover their tracks rather nicely, even framing somebody else. (Steal it out of a clerk’s email, and the clerk takes the blame!) Or, heck, maybe the janitor found a draft in the garbage!
Drafts get around. The number of people who are not justices or clerks who get to see those drafts is kept as small as possible, but that number is greater than zero. Obviously lots and lots of Americans have strong opinions about abortion. One of these chaps can easily call Politico. Maybe they had progressive reasons. Maybe they had conservative reasons. Maybe they just did it for the adrenaline rush! Have you ever leaked something? I have, once or twice, in obviously far less consequential contexts.5 It is a rush!
There’s a huge problem with this otherwise-pat theory, though: support staff would know lots and lots of things, but they shouldn’t know the vote count that was reported by Politico. Politico ran that information as though it were confirmed. I don’t think they’d take some rando employee’s word for it.
Espionage (or Hackers)
Do you trust the Supreme Court’s information security? I don’t. It’s gotta be weaker than Congress’s and far weaker than the White House’s. A determined nation-state could surely breach it. A sufficiently determined corporation might do it, or a very lucky and determined random hacker.
This would explain why the opinion we got is three months old. When you hack documents, you take what you find, and you rarely find everything. Maybe the hackers got the vote counts by reading emails, or with a well-placed, well-paid spy.
This would also explain one of the strangest facts about the whole case, which I haven’t mentioned yet: Josh Gerstein (Politico’s court reporter) shares a byline with Alexander Ward, who is emphatically a national security reporter. Ward has been on the Ukraine beat for months. What’s he doing on this story? Presumably, either the leaker knows him personally… or the leaker has crossed paths with him professionally. This makes sense for a foreign power.
So we have means and opportunity for a foreign power or corporation to do this.
But what’s the motive? The leaker didn’t leak a trove of documents. Only information related to Dobbs came out. This suggests a specific interest in Dobbs that doesn’t make a lot of sense for a nation-state or corporation. Nor would a nation-state or corporation benefit from exposing their access inside the Supreme Court like this. It’s much easier to stay embedded there and keep spying on the Court’s deliberations!
Any destabilizing effects this opinion will have on American politics are pretty much going to happen no matter what, so our adversaries don’t get any benefit from a leak, except making the unrest start a few weeks earlier. Your typical anarchist hacker isn’t going to target a single case, either. Hackers nearly always hit the entire institution—all the draft cases. The odds are remote that this document, in the most explosive case imaginable, is the only document a hacker comes across.
So a nation-state doesn’t make sense, a corporation doesn’t make sense, a “typical” hacker doesn’t make sense.
That leaves some kind of solo abortion zealot (on either side) who was so agitated about this decision that he or she hacked in and got very lucky. But there’s a lot of weird, crazy zealots out there on one case or another. The law of probabilities says that, eventually, some kook will break into the Court. But it’s unlikely that the very first kook to break in does it on the most explosive case in a decade or more.
Ginni Thomas
Nah, I don’t buy it. I’ve heard it, but I don’t see either motive or opportunity.
The Central Intelligence Agency
Look, this list is supposed to be a comprehensive list of theories, and this is one I saw.
Elon Musk
Okay, now this is just getting ridiculous.
Multiple Leaks
Actually, I kind of like this one. The draft document and the vote count information, although both reported by the same Politico story, did not necessarily come from the same source!
In fact, we can have some confidence that there are multiple leaks at the Court right now. I count up to five:
The leaker who gave Politico the draft opinion.
The leaker who gave Politico the vote count information (most likely the same person, but maybe not).
The leaker who told CNN’s Joan Bikuspic that Roberts wasn’t prepared to join the majority opinion overturning Roe (almost definitely not the same person, so we have a minimum of two leakers).
The leaker who (probably maybe) tipped off the Wall Street Journal last week about Roberts’ lobbying to change a vote, and possibly whether that lobbying was succeeding. (This could be the same as leaker #3.)
The leaker(s?) who corroborated these stories under the traditional journalistic “two-source” rule. Journalism standards have fallen by the wayside, so I rather doubt this is being followed, but, if it is, then a lot of people had to leak a lot of times to get these stories verified and published.
If there are multiple leaks, it solves a lot of problems with some of these theories, especially the “support staff” theory. Possibly a support staffer committed the Unforgivable Sin of leaking the actual draft, and a clerk (likely not even realizing this) independently leaked (or merely confirmed?) the vote count information when Politico asked. Vote count stuff is still very bad to leak, according to Supreme Court culture, but it’s several orders of magnitude less bad than leaking a draft opinion. Thus, a clerk might accidentally get wrapped up in somebody else’s document leak without realizing it.
My Ranking
Most to least probable:
A conservative justice/clerk. This would be very bad for Roe/Casey opponents. This would both show that we are currently losing this case (despite the appearance of winning) and drastically increase the chances that we actually lose this case in June (or at least walk away with a half-victory: Mississippi’s law upheld but Roe/Casey retrenched). Nevertheless, this seems to me to be a simple, logical theory with very few problems. (30%)
Multiple leaks. This explanation has no obvious problems. It fits all the available facts. It just seems slightly too complicated to be the most likely. Also, I want this to be the answer so much more than #1 that I can’t trust my judgment. (20%)
A progressive justice/clerk. This would be very good, for the opposite reasons from #1. Just doesn’t make as much tactical sense as a conservative leak. (20%)
Support staff. It’s a good sign if this happens, because it means the draft decision more or less represents the current state of play, and isn’t being leaked in response to John Roberts’ lobbying or some other internal factor the staff doesn’t (shouldn’t) know about. It’s probably just being leaked for the sake of leaking it. (15%)
None of the above. (10%)
Roberts. I like the poetry of this, but c’mon. (5%)
[Biiiiiig gap here before the next most likely one.]
[Adding another one to emphasize the bigness of the gap.]
Ginni Thomas. Why? (0.5%)
The CIA. What? (0.2%)
Elon Musk. Huh? (0.1%)
Breyer. No. Absolutely not. (0%)
NOTE: Probabilities may add up to 100.8% due to rounding because they are just a gut-check.
The Morality of the Leak
Depending on the circumstances, leaking this document may be morally justifiable, even if grossly improper (under ordinary circumstances), damaging to the Supreme Court, and potentially even criminal. I don’t hate the leaker, and I can easily imagine and sympathize with what was going through his or her head even if I don’t agree with it. Politics ain’t beanbag, and the lives of millions of unborn children are,6 unfortunately, a political subject right now.
However, I find it difficult to see a moral excuse for someone to leak this opinion and not come clean about it. That’s how someone with integrity does non-violent civil disobedience: you do the crime, you confess, you do the time. It seems to me that the leaker should come forward, now, and face the consequences. I’m open to persuasion on this, though.
That’s all I’ve got! Go away now.
Post-script: I’m inserting this at the very end of my editing process, because I just heard it, so it’s a post-script. Yesterday, I wrote:
Thomas asked Alito to write the majority, and Alito agreed.
(Sidebar: this is a little odd. Thomas is a better thinker and writer than Alito, and I think they both know that. So is Gorsuch, for that matter, although Gorsuch can be pretty high-handed. Kavanaugh has a more moderate reputation than any of those three. And Barrett is a woman, which matters not a whit legally, but a great deal politically. Alito seems like the worst person to write this opinion, of the five. Yet the assignment was made.)
A friend of mine sent me the Advisory Opinions podcast from today, featuring David French and Sarah Isgur, and French has a very plausible theory for why Thomas assigned Alito rather than writing himself: French thinks that Thomas is writing a separate concurrence which embraces the theory that unborn children are “persons” under the 14th Amendment and, therefore, abortion bans are not only constitutionally permissible but constitutionally required.
This concurrence would have no chance of winning a majority today, but, in ten or fifteen years…? Clarence Thomas has always played the long game. He often stakes out a pretty radical (but correct) position, publishes that position, lets everyone sneer at him, and then gradually his ideas end up influencing enough people over to his side that he wins. The Personhood idea, as John Finnis & Robert George showed in their amicus brief, is radical, but correct.
But if Thomas is writing a concurrence, he can’t write the majority. This makes sense. Alito may have gotten the majority, then, because Barrett is considered too junior (or too obviously a political choice) to write it, Kavanaugh is too wobbly, and Gorsuch has too hard a time making the rhetorical compromises needed to hold a fragile majority.
I don’t know if this theory is right, but it’s the first explanation of Alito’s authorship that makes sense to me.
Also, French & Isgur, who have several reasons to know better than me, don’t think the leaker will get caught.
Future programming notes: my plan was to finish a piece this month about whether a right to abortion is protected by the 13th Amendment (spoilers: no. Sorry, Koppelman). I would have posted that a few weeks in advance of the likely release of Dobbs, with plenty of time to rest up before. I guess I still plan to finish that, but my priorities are a bit scrambled right now, and I don’t really know what the next article I post will be. However, I do have a book review coming out at Law & Liberty this week, and you will definitely get an email notification from De Civitate about that when it goes up.
UPDATE(S) 5 May 2022: In response to Facebook comments, I have assigned gut-level probabilities to each of the possible outcomes in my ranking above.
As of yesterday, PredictIt (a market where people have to put actual money on their bets instead of just mouthing off) still showed a 15% chance that not only would Roe/Casey be upheld, but the Mississippi 15-week ban would actually be struck down! As we can see today, the only world in which the Mississippi ban is struck down is one in which not one but two conservative justices die between now and June 30th.
The decision is actually pretty restrained, and decides the case on one of the narrowest available grounds, but Law School Leftist activists don’t usually see conservative-leaning outcomes that way.
A leaked (!) majority (!) draft by Alito (!) overturns both Roe (!) and Casey!!
Pictured: a smaller leak than the leak that just leaked out of the Supreme Court.
NOTE: This post was originally published at my Substack. The footnote links go there instead of to the bottom of the page.
The second exclamation point in the subhead is justified.
I was actually already gonna write a Dashed-Off Daily Dobbs upDate1 today. There were some significant developments in Dobbs v. Jackson Women’s Health during the past week! First, we found out last week that Justice Sotomayor and Justice Roberts were not writing the first-draft majority opinion. Second, there was a rumor based on a Wall Street Journal editorial last week that Chief Justice Roberts was lobbying hard to stop one of the other justices from voting to overturn Roe/Casey.2
I was gonna spend, like, six paragraphs explaining how we knew that Sotomayor and Roberts weren’t writing the opinion, who might be writing it instead, and what that likely meant for the outcome.
And now… none of that matters. At all. Because Politico tonight published the first-draft majority opinion. It’s by Justice Samuel Alito, by many measures the most conservative member of the Supreme Court!
I can’t overstate how insane it is that we have this document. No one expected to see a draft opinion in Dobbs v. Jackson for another 30 or 40 years, when the justices had all died and we could start to piece together the puzzle of how the final decision in Dobbs v. Jackson had been reached. The Supreme Court does not leak this kind of material.
There were a couple of minor leaks in 2012 (when someone close to the Court hinted that Chief Justice Roberts had changed his vote in the Obamacare case) and 2020, when Joan Bikuspic at CNN managed to somehow find out (after the fact) how the opinions and votes had been settled in several major decisions (including Bostock v. Clayton County and the DACA case). When Justice Breyer accidentally obliquely hinted at the (totally unsurprising and already imminent) result in Cameron v. EMW Women’s Surgical Center a few weeks ago, it made national headlines and strengthened the argument that Breyer was right to retire. In 1973, Newsweek somehow found out about the outcome in the original abortion decision, Roe v. Wade, a week ahead of time.
These were treated as four-alarm fires. After the Roe leak, Chief Justice Burger tried to force every clerk in the Supreme Court to submit to lie detector tests. A Government Printing Office employee (who denied knowing anything) got reassigned. The Bikuspic leaks were addressed in-house, but the rumor mill says the in-house handling was very grave indeed, because Roberts takes the integrity of the Court Very Seriously and the justices can’t function if they’re paranoid about leaks.
And, those times, the only things that leaked were vote counts.
But how can I even be talking about the leak when the actual draft majority opinion is right there?
According to Politico, this really is a majority opinion. The Friday after Dobbs, the justices had a private conference and voted on the case:
A person familiar with the court’s deliberations said that four of the other Republican-appointed justices – Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett – had voted with Alito in the conference held among the justices after hearing oral arguments in December[.]
Five votes to overturn Roe/Casey meant someone had to write a draft opinion overturning Roe/Casey. The most senior justice in the majority decides who writes. In this case, that was Justice Clarence Thomas. So Thomas asked Alito to write the majority, and Alito agreed.
(Sidebar: this is a little odd. Thomas is a better thinker and writer than Alito, and I think they both know that. So is Gorsuch, for that matter, although Gorsuch can be pretty high-handed. Kavanaugh has a more moderate reputation than any of those three. And Barrett is a woman, which matters not a whit legally, but a great deal politically. Alito seems like the worst person to write this opinion, of the five. Yet the assignment was made.)
We now have that draft opinion from Alito. It’s dated February 10th, three months ago. Definitely out-of-date by now.
After a draft opinion is written and circulated, the justices can change their votes if they don’t find the draft majority opinion convincing. These vote changes can turn a draft majority opinion into an actual dissenting opinion. This happened in the Obamacare case (Roberts went left) and, most notoriously, in Planned Parenthood v. Casey (Kennedy and O’Connor went left). This is what I was most scared of in this case, what I’ve been praying about every day, because Roberts was obviously, very predictably, lobbying to break the anti-Roe/Casey majority. Worse, the Wall Street Journal story suggested that he was close to succeeding, or perhaps already had.
But Politico reassures us:
…and that line-up remains unchanged as of this week.
CNN’s Joan Bikuspic apparently found a leak of her own, because she has now confirmed the guts of the story (albeit not the document itself) and adds this tidbit:
Chief Justice John Roberts did not want to completely overturn Roe v. Wade, meaning he would have dissented from Alito’s draft opinion, sources tell CNN, likely with the court’s three liberals. Roberts is willing, however, to uphold the Mississippi law that would ban abortion at 15 weeks of pregnancy, CNN has learned. Under current law, government cannot interfere with a women’s choice to terminate a pregnancy before about 23 weeks, when a fetus could live outside the womb.3
So, as of Sunday morning, there were still five votes to overturn Roe/Casey. The draft opinion has certainly changed a lot since February. It’s also possible that Alito’s draft is no longer the “main” opinion; someone else’s concurrence may have become the majority and Alito’s majority reduced to a concurrence.
Or Politico’s reporting could just be wrong. It would be bizarre to assume that a news agency has all the correct details about a very big secret when the same news agency so often struggles to accurately report totally public information!
But, for the moment, assuming the leak is reliable and subsequent lobbying has no effect on the final outcome, it seems most probable that a revisedversion of the Alito draft opinion will become the law of the land when the decision is handed down.
So what’s that opinion say?
If you know anything about abortion law… nothing very surprising!
I really feel like I have a duty to walk you through this opinion. This, the actual legal analysis, should be the centerpiece of today’s story, not the metastory about the leak.
But here’s the thing: Roe v. Wade was a very stupid decision. Not just wrong, not just evil—aggressively stupid. Planned Parenthood v. Casey was somehow even worse.4 Any third-year law student, or indeed any reasonably precocious legal pundit with zero formal lawyer training, could write a thoroughly-researched, analytical annihilation of every atom of Roe/Casey. “We hold that Roe and Casey must be overturned” is the lowest-hanging fruit in the history of landmark constitutional decisions. It requires no genius-level theoretical reasoning about the nature of constitutions, like Marbury v. Madison. It needs no judicial massaging to generate new applications of constitutional principles, like Brown v. Board of Education. It’s an exceptionally straightforward case of “Here is the most egregiously wrong court case a conlaw professor could possibly imagine for his easiest test; write a decision correctly applying the law to overturn this constitutional law precedent, with appropriate citations.” It was a ton of work, I’m certain, to assemble the research from original sources and amicus briefs and old decisions, and to structure it into a good clear piece of writing. It would take me months to write Alito’s draft majority opinion. But it would not be difficult.
The only people who could possibly be surprised by any of this decision are people who have no idea how constitutional rights are identified and no clue what Roe and Casey actually said. Those people5 should read this opinion! (Yes, if you find this outcome in any way surprising, I am talking about you.) The opinion is a very gentle education in the rules of judicial reasoning, and cuts through a lot of Arlen Specter bullcrap that gets thrown around in abortion cases (like “super stare decisis”).
I’ll walk you briefly through the structure of it, and I’ll leave you to read the detailed evidence Alito presents if you find anything I say here remotely controversial:
Alito’s opinion starts with a brief summary of the history of American abortion law, (especially Roe and Casey), briefly summarizes the central issue in Dobbs v. Jackson (a Mississippi law that bans abortion after 15 weeks), and briefly summarizes the Court’s conclusions: Roe and Casey must be (and are) overturned. That’s all in the preface and in Section I.
In Section II, the real meat and potatoes begins. Alito starts by observing two things:
When evaluating whether an old precedent of the Supreme Court should be upheld, extended, weakened, or overturned, it is critical to start by evaluating whether that precedent was correctly decided on firm legal ground (and, if not, how weak it really is). This analysis happens before evaluating whether stare decisis should protect the decision, and actually plays an important rule in that evaluation. Even if the Court chooses to uphold a shaky precedent (which it does sometimes), it has to first determine whether the precedent is shaky.
The court in Casey completely skipped this step.
So Justice Alito and his majority do Casey’s work for it: they walk through the evidence Roe v. Wade presented for the existence of a constitutional right to abortion, and analyze whether it was correct.
Alito notes that abortion is not a written right in the Constitution. Roe claimed that abortion was part of a right to privacy… but this is also not a written right in the Constitution. This means that the right to abortion, if it exists, is an unwritten right.
The Court (and Justice Alito) recognize that some unwritten rights do exist and are protected by the Constitution. For example, Americans have a recognized “right to travel,” that is, to move freely between different states, without border controls or anything of that nature. These rights can come from two sources:
Some rights are “deeply rooted” in our nation’s “history and traditions,” and are (according to Supreme Court precedent) implicitly protected by the Fourteenth Amendment’s Privileges and Immunities clause or Due Process clause.
Some rights may be an “essential component” of “ordered liberty”.6
The “history and traditions” test is also known as the Glucksberg Test, and it is well-established in American case law. The thinking is that one very easy way to determine whether the Fourteenth Amendment implicitly protects something is to consult the nation’s history, especially the prevailing laws and practices around the time the Fourteenth Amendment was proposed and ratified. If the thing has been traditionally protected, it might be a “liberty” protected by the Fourteenth Amendment. However, if the thing was not legally protected in our nation’s history—particularly during the timeframe when the 14A came into force—then it cannot be one of the liberties guaranteed by the Privileges and Immunities Clause. If it had been one of those liberties, then the someone at the time would have at least thought to suggest that the 14A protects it.
Abortion wasn’t just “not legally protected” during the time frame in question. It was actively outlawed in every state in the union, the laws during that time were rapidly tightening, and — importantly — absolutely no one, anywhere, even among opponents of abortion restrictions, even suggested the possibility that these laws were unconstitutional or violated individual rights.
Section II-B runs for 15 full pages, and it systematically and painstakingly dismantles the historical arguments and evidence presented in Roe. Roe claimed, based on the faulty and discredited historical research of Cyril Means, that abortion was once protected under the common law, and only started to get outlawed because evil doctors were trying to stamp out midwives and take control of childbirth. This is total nonsense. Alito shows, in detail, that abortion was always considered a criminal act under the common law, that it was a serious matter even before quickening, and that American states began tightening their abortion laws both before and after the 14th Amendment passed as the quickening standard was discredited for being unscientific and underprotective. Roe’s basic analysis of the early American abortion precedents was not just brief, but completely wrong in every important detail.
In Section II-C, Alito turns to the argument for “ordered liberty,” which comes mainly from Casey, especially the notorious passage in Casey where Justice Kennedy started waxing poetic:
At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.
That is, of course, all well and good, Alito notes, but every single time any legislature passes any law of any kind, the liberty to act in certain ways is constrained. The Court allows this because liberty is not absolute. How do we decide which liberties should be constrained and which ones shouldn’t? Is abortion one of them? Alito walks us through some of the policy arguments different people make for or against abortion rights… then reminds us that the courts have neither the competence nor the authority to resolve questions of public policy. Courts may only apply the law. The Fourteenth Amendment, understood through the lens of our nation’s history and tradition, is law. “Freewheeling judicial policymaking” of the kind seen in the discredited Lochner decision… is not. Casey offered no justification for usurping the ordinary legislative authority to determine the shape of “ordered liberty” in areas where the Constitution is silent. All the Casey Court offered was an appeal to stare decisis, the principle that court decisions, once made, become precedents should generally be upheld in future cases.
So, in Section III, Alito turns to stare decisis. Of course, stare decisis is not an inexorable command. As Alito points out, if we followed stare decisis in every case, forever, we would still have “separate but equal” (Plessy), court rulings that outlawed minimum wages and child labor protections (Lochner), and mandatory participation in the Pledge of Allegiance at school regardless of religion (Barnette). The Court overturned those precedents. In the enormous Footnote 47, Alito cites dozens of times when the Court has overturned a constitutional precedent. The footnotes goes on for two full pages of tiny tiny text. It is not a complete list.
The Court traditionally applies five factors when considering whether a wrong decision should be upheld under stare decisis or overturned: the nature of the error, the quality of the reasoning supporting the error, the workability of the rules the decision imposed, the disruption and inconsistency the case caused in other areas of the law, and finally the “reliance interest”—whether anyone depends on the court’s wrong ruling and made long-term planning decisions based on the ruling. Stare decisis is weakest in constitutional cases, because, if the Court gets it wrong, it is nearly impossible for the rest of the country to fix the mistake. (It can only be done via constitutional amendment.)
Again, workmanlike, Alito walks through all five factors and simply, efficiently, cold-bloodedly razes the defenders of abortion rights to the ground. There are no surprises here, unless you are, I don’t know, really confused by what counts as a “reliance interest.” (Justices O’Connor and Kennedy sure were in Casey!) There is not one sliver of justification for upholding Roe/Casey under stare decisis, and Alito proves the case. Not a hard case to prove, I admit, but still very pleasant to see it all laid out clearly. The workability section is particularly devastating, for all the obvious reasons, but hey it’s still nice to see them bulleted like this. Section III is quite long.
Section IV is short. Alito presents us with Casey’s argument that we should leave erroneous abortion precedents in place because it would damage the Court to reverse such a widely known precedent—even if the precedent were wrong, hugely controversial, and widely hated. Alito does not need much time to (politely) point out how insane that is. People respect the Court insofar as it can be counted on to do law instead of playing politics, and playing politics is exactly and only what the Casey plurality commanded the Court to do. Alito then shows how Roe/Casey’s vain, crazed hope that a judicial ruling would “settle” the abortion question once and for all, bringing about peace in our country, has completely backfired and actually inflamed the issue far more than it ever needed to be.
Sometimes the only thing the Court can do after a horrible error is to backtrack. The best time to do that would have been 30 years ago, when Casey came down and there was far less institutional prestige invested in the albatross of a manufactured abortion right. The second-best time to do it is today. The worst time to do it would be 30 years from now, when things are even more inflamed and the Court’s integrity has been fatally compromised. (Alito absolutely does not say any of that so bluntly. This paragraph is me talking.)
Section V is an analysis of the actual Mississippi law at issue in this case. Since Roe and Casey are wrong and there is no constitutional right to an abortion, is the Mississippi law constitutional? Alito reviews the law according to the very forgiving “rational basis” standard that applies when no constitutional rights are involved, and, no surprise, concludes that the law meets that standard. He declares that it should be upheld. He concludes:
We end this opinion where we began. Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.
The judgment of the Fifth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.
Not the most stirring close in the history of the Court, but, unlike Justice Kennedy, Alito isn’t here to pleasure himself to the sound of his own voice. This is one of the most consequential closings in history, and we can only pray and fast in hopes of seeing those words or something quite like them made official in coming months.
A few things I noted while reading the opinion:
Alito has a well-deserved reputation as a bomb-thrower. His opinions are often loud-mouthed, and he routinely stakes out the most extreme right-wing position that can reasonably be called “mainstream.”
This opinion is not like that, at all. Alito has one or two quips in here (“There was no support. Zero. None.”), but they are gentle and serve his argument. More than once, he goes out of his way to note that he isn’t casting aspersions on the motives of either side. He treats Casey with a respect I find almost difficult to stomach.
Moreover, Alito avoids all the more extreme conservative positions, and even expressly disclaims several. This opinion clearly weakens the legal underpinnings of a whole lot of substantive due process cases, from Griswold (birth control) to Obergefell (same-sex marriage), but Alito repeatedly and clearly insists that, no, this opinion does not touch any other precedent besides our abortion precedents. He insists specifically that Griswold stands unmolested after Dobbs. The difference, Alito argues, is that abortion kills what many people consider a human life, while the other cases don’t deal with issues that even approach that level of moral and social gravity. While this is true, I can’t help noticing that it isn’t really relevant, legally speaking. Alito is deliberately (and not very convincingly) trying to keep his opinion narrow, presumably to keep from scaring off any members of his majority and/or making the inevitable press freakout any worse than it has to be.
There is also not one single solitary mention of “personhood” rights for fetuses, which is currently the cutting edge of conservative legal thought about abortion. I noticed several passages where Alito seemed to carefully leave the door open for personhood theories in the future. (For example, in the conclusion, Alito affirms states’ right to restrict abortion, but interestingly not their right to allow it.) Yet he never actually talks about it. Personhood would recognize fetuses as persons protected by the 14th Amendment, which would make allowing abortion untenable in every state. But it looks like all we can hope for in Dobbs is (no surprise here) the right of each state to restrict abortion if it wants, while other states can do their own thing.
There’s a spot at the bottom of page 64 where Alito was talking about precedents that presumed to try to settle questions judicially that needed to be left to democracy. I was 100% certain I was about to see a citation of Dred Scott v. Sandford, which would have been appropriate for lots of reasons. (Dred Scott tried to do the same “forced judicial settlement” thing that Casey did.) Alito often goes so far out on a right-wing limb that I cringe, but, in this case, even I couldn’t have resisted the jab. Alito did!
This is the behavior of a justice who is pulling out all the stops (relative to his baseline writing) to hold on to a (possibly fragile) majority.
Robert George and John Finnis’s legal brief on the common-law definition of quickening (which may have applied much earlier in pregnancy than is generally believed) gets a shoutout here, although Alito quickly sets it aside by observing that the question need not be settled for his larger point about common law to be sustained. None of George & Finnis’s other, more radical stuff gets mentioned.
No citation of Judge Friendly’s abortion decision, which I was really expecting. Plenty of other Roe critics, especially critics from the left like John Hart Ely, get cited, but not Friendly.
The brief my mom signed gets a citation, which is pretty exciting: if this opinion becomes substantially the final opinion, my mother (who taught me everything I know about the importance of fighting for the unborn) will have been cited in the decision that ended Roe/Casey! Even more credit, of course, would go to the brief’s organizer, the brilliant and winning Prof. Teresa Collett.
…and that’s all I wrote! There’s really not that much in this draft opinion to unpack! Like I said, this was not a difficult assignment. The gun rights case being decided this very term would be twice as hard to write.
I was planning to turn, at this point, to an analysis of the leak and what it tells us. Frankly, I’m pretty worried about the leak. (I was also going to address the possibility that this whole thing is fake.)
However, it has taken me a long time to read the opinion and write this reaction. It is now very late at night and I need to turn in. So… I will return to my keyboard tomorrow, hopefully with another Dashed-Off Daily Dobbs upDate in your inboxes before tomorrow becomes Wednesday!
If you’re just tuning in, I refer to Roe v. Wade (1973) and Planned Parenthood v. Casey (1992) together as Roe/Casey. Roe is the case everyone recognizes, but Roe was actually gutted by Casey.Casey, not Roe, is the actual source of abortion rights in American law today.
Chief Justice John Roberts deserves your contempt. His transparently political decisionmaking violates his oath, damages the Court, wastes the political legitimacy he always claims to care about, and, above all, enacts injustice on huge swaths of America, all so John Roberts can tell himself, falsely, that he helped America’s divisive politics when he goes to bed at night. There is no more devoted enemy than a former devotee, and that kinda makes me Eric Bana’s Nero to John Roberts’ Spock.
Alito pauses briefly to address the theory advanced by some theorists—supported by neither Roe nor Casey—that abortion is guaranteed under the Equal Protection Clause, because only women can get abortions and so it inherently violates the Equal Protection Clause because restrictions on abortion don’t affect men. There is a whollllle lot wrong with this view, starting with its whole understanding of the Equal Protection Clause as providing something more than neutral and fair enforcement of generally applicable laws, but Alito only touches on the most obvious problem: this theory flies in the face of several of the Court’s other Equal Protection precedents—precedents that nobody has asked to overturn and which nobody generally seems to think were bad precedents in the first place.
Doing the right thing for the wrong reasons is still doing the right thing.
NOTE: This post was originally published at my Substack. The footnote links go there instead of to the bottom of the page.
I really wanted to do a picture of the Reedy Creek planning office here, but my editor (me) insisted that nobody would have the slightest idea what it was a picture of. Looks like this, though.
Florida has just passed a law ending the Reedy Creek Improvement District (RCID).
The RCID is a special area of Florida where the Disney Company is the government. Disney paves the roads, Disney writes the zoning code and enforces it against itself, Disney runs the utilities (they have the power to build their own nuclear power plant!), and Disney serves as the legal police force. People sometimes refer to mall cops as “Mickey Mouse cops” to suggest that they’re fake, but actual Mickey Mouse cops in the RCID can put you in actual jail.
You may recognize this for what it is: one of the most obvious cases of crony capitalism in history. It’s the kind of thing you see in cyberpunk dystopias where corporations have displaced governments. Universal Orlando has to go through the county planning office and get their approval before it can build new stuff. Disney just has to ask another part of Disney. If the Hilton has a pothole in front of their hotel, they have to call public works. Disney can just fill the pothole itself. It isn’t a fair and level playing field, and it never has been. The RCID should never have existed, and wise legislators would have ended it decades ago.
Instead, they passed a bill ending it this week. (The bill takes effect next year.) While officials are saying the correct words about crony capitalism, it is obvious why the RCID suddenly came into political focus now, not 10 or 20 years ago: Disney started a street fight with the elected government of Florida over the recently-passed Parental Rights In Education Act (more widely known as the “Don’t Say Gay” or “Anti-Groomer” bill), and Gov. Ron DeSantis responded by declaring war. DeSantis called a special session to consider eliminating, not all Florida special taxing districts, but only those created 55 years ago or more. The Reedy Creek Improvement District was created… exactly 55 years ago. Even in the interview I linked, the correct words about “level playing fields” and “the best interests of Floridians” are immediately followed by a syntactically-unconnected-but-obviously-related mention of “Burbank executives sexualizing our children.”
Some on the Right are freaking out about this. David French’s reaction is typical of this strain of thought:
One of the bewildering things about being a conservative in a populist age is the sheer speed at which populists will shift their opinions, including on allegedly bedrock constitutional values, to satisfy the popular bloodlust of the moment. I’m old enough, for example, to remember all the way back to 2019. In March the San Antonio City Council voted to bar Chick-fil-A from San Antonio International Airport. The reason? It opposed Chick-fil-A’s alleged “legacy of anti-LGBT behavior.” Republicans were rightly furious at the decision. […]
Let’s fast-forward three short years and move states, from Florida to Texas… Florida, led by Governor Ron DeSantis, is overtly and explicitly attempting to punish Disney for the company’s opposition to Florida House Bill 1557. Florida became San Antonio, except on a much bigger scale, to thunderous online right-wing applause.
…they’re dead wrong on this issue. “You get what you ask for” or “they will deserve it” are not principles of constitutional law or a free society. In fact, the opposite is true. The First Amendment affirmatively protects the right of private institutions to engage in political speech, and that protection extends to safeguarding them from government reprisal for their speech.
On the one hand, I agree with French’s principle: “They deserve it” is not a principle of constitutional law or a free society.
There is almost no political victory I wouldn’t trade for 28-year nonrenewable copyright. If anti-wokeism helps bring it about, I will hug it and kiss it on the lips. If the tables turn and wokeism helps restore Queen Anne’s Copyright, I will hug Ibram X. Kendi and kiss him on the lips. I will take any allies in my war on eternal copyright.
And, here’s the thing: that’s politics. Never in history has a mass political movement achieved any goal (good or bad) for pure motives. Individuals within movements often have good intentions. Yet the movement always necessarily makes common cause with people who do not.
The anti-abortion movement has lots of people in it who want to save babies from being murdered. There are also some people who consider themselves allied to the anti-abortion movement who just want to punish lower-class promiscuous women by forcing them to bear children.
The pro-abortion movement has lots of people in it who want to protect the power of every woman to determine her own destiny, which is a pure motive (even though their method is an atrocity). It also has some allies who just want to use women as disposable receptacles for their orgasms, as feminist Andrea Dworkin pointed out in the 1980s.
The Civil Rights Movement had lots of people who wanted to treat black people equally. It also had a lot of people who thought Jim Crow went too far but who still opposed interracial marriage. It also had a few straight-up communist agitators who hoped to destabilize the American government. The movement needed all those people to get the football over the 18-yard box or whatever why did I even attempt a football metaphor, and so the people with pure and good motives made common cause with the ones who didn’t. That’s politics.
The Great Man of the last century said it best: when Nazi Germany invaded the Soviet Union—an obviously evil empire run by a dictator arguably more bloodied than the Reich—Winston Churchill forged an alliance with Joseph Stalin. When called out on it, Churchill quipped, “If Hitler invaded Hell, I would at least make a favourable reference to the Devil in the House of Commons.” Indeed, we likely would not have won World War II without the Soviets.
Even as we agree with David French that there is an illiberal faction on today’s American Right that is both hypocritical and dangerous, we can—and should—make common cause with them to bring an end to the Reedy Creek Improvement District, because the Reedy Creek Improvement District is bad. The RCID’s destruction is a victory worth celebrating, perhaps with a note of caution, but not with wailing and gnashing of teeth. Right-wing critics who condemn purity culture in the Church err when they demand perfect purity from the policymaking process as well.
…oh, it’s so tempting to just end there, with that highly defensible conclusion and a morally satisfying resolution of cognitive dissonance. It’s such a me place to end! I can condemn both sides and sit comfortably above the fray! It’s so responsible! It’s so credible! Buuuuut, I just… aggggh! Okay!
Beyond the inevitability of impurity, the Floridians don’t just have a better goal in mind than the San Antonians who tried to ban Chik-fil-A. The Floridians have purer motives, too. David French’s critique still has some salience, and the right-wing illiberalism he’s talking about is broadly real… … … butbut but:
First, in the San Antonio incident, the city government took official action to punish a corporation for activities wholly unrelated to the government of San Antonio. (San Antonio was directly reacting to new evidence about Chick-fil-A’s history of donating to Christian charities that San Antonio regarded as anti-gay.) Chick-fil-A had no quarrel with San Antonio and had taken no public policy action at all. San Antonio struck first, picking on a company it just didn’t like.
In Florida, however, Disney chose to enter the political arena. Disney attempted to exercise political power over a bill that had nothing to do with Disney’s business interests. In doing so, Disney was attempting to extend its political power, beyond its long-recognized right to advance its own business interests. Disney now wanted its internal corporate morality to also control social policy for all the people of Florida. That was a bold move.
If you attempt to acquire—really, usurp—new political power, which was not granted to you or recognized by the People, and they acquiesce, then hooray for you, you now have new powers. But if the People don’t like it, then it is entirely within the People’s proper authority to bring you to heel. You will be denied the new powers you sought. You may even be deprived of some political powers you already had, because the People no longer trust you to wield it responsibly.
In the United States, we say that the People are “sovereign,” but we don’t often think about what that actually means. A “sovereign,” in political theory and the law of nations, has final and total authority over how political power is exercised within the sovereign’s domain. The only constraints on that absolute authority are those constraints which the sovereign has imposed upon itself (for example, through the Bill of Rights1) and those constraints which are implicit in divine law.2 A sovereign that does not police would-be usurpers—usurpers like, in this case, the Disney Corporation—will not remain sovereign for long.
Disney’s attempt to control political outcomes within Florida made it a threat and a legitimate target in a way that Chick-fil-A, which did not attempt to assert power or affect San Antonio at all, simply did not. San Antonians were using their power offensively. Floridians are using it defensively. Even if we reversed all the political alignments in this case, that’s a purer motive.
The second reason Floridians-Against-Disney have a purer motive than San-Antonians-Against-Chikin is related. Concentrated corporate power has, since 1980, become a broad and comprehensive threat to the American way of life. This is true across a vast range of issues, from the obvious (the power to freeze their opponents out of the entire financial system for any or no reason with zero due process) to the subtle (a large component of the present inflation crisis likely comes from a wave of mergers and acquisitions before and during the pandemic, allowing newly-monopolized industries to raise prices3).
Corporate power needs to be confronted very broadly and very profoundly. While no one with half a brain wants to return to the era of the Civil Aeronautics Board, it is time to recognize that the Reaganist impulse to unshackle corporations has gone too far. We should have loosened the leashes we kept on corporations. Instead, we removed them altogether, and now the titans are rampaging across the land, squashing the peasants between their toes. The pendulum needs to start swinging back the other direction. This has been increasingly clear for a number of years. Killing a blatantly crony capitalist arrangement is a tiny baby’s first teetering step—but a promising one.
If it took this particular confrontation, over a social policy bill, for Floridians to finally sit up and notice that corporations are running amuck, well… isn’t that understandable? Isn’t that exactly what you’d expect?
Americans, and especially Republicans, have been really devoted to the idea of Total Market Freedom for a really long time.4 Those ideas, sunk down deep into the folds of the brains of millions of voters and legislators, are not changed or challenged easily. Voters do not like changing their mind, and will make considerable efforts to ignore problems with their position. The thing that usually forces the confrontation is a direct, highly visible threat to something the voter cares about. This can bring about a “Road to Damascus” conversion, where the scales fall from the self-blinded voter’s eyes, and she suddenly recognizes not only the immediate threat, but the much broader context in which that threat arose. Which I guess is a fancy way of saying that it took Disney wielding its vast and overweening powers against something conservatives cared about for conservatives to notice that corporations, across the board, have vast and overweening power in our society. Now that they have seen it, they can’t unsee it, and so their whole orientation toward business begins to shift.
A right wing that has long recognized and feared the power of Big Government is learning to recognize and fear the power of Big Corporate, too. This is not simple, petty retaliation, like what we saw in San Antonio. It’s recognition, remolding, and response. We should work to ensure that this long-overdue reshaping of conservative doctrine is not overtaken by illiberal forces—forces like the Vermeulesque postliberalism that would simply remake Leviathan in Donald Trump’s image—but we should also not hesitate to applaud it, nor to push for an expanded battlefront against every corporation large enough to pose a threat to American well-being.
EDITOR’S NOTE: I dashed this one off pretty quick and had to go clean my house for the First Communion party tomorrow, and therefore reserve the right to correct typos and so forth until Monday. 🙂
UPDATE 25 April 2022: Changed some language about “members” of the pro-/anti-abortion movements to language about “allies,” since the actual activist members of both groups are generally very pure of motive.
French and other commentators have pointed to the 1996 Supreme Court case O’Hare v. City of Northlake to show that, actually, this kind of political retaliation is forbidden, even to the sovereign People, because it violates the First Amendment to which we have bound ourselves. I think this overreads the First Amendment. O’Hare v. Northlake was a 7-2 decision, it is true… but every member of its majority is dead or retired, and the sole surviving dissenter, Justice Thomas, is now the most influential justice on the Supreme Court.
As Justice Scalia’s dissent argued at the time, O’Hare was an unworkable error built out of recent, anachronistic precedents. (Fun fact: this dissent is the source of Scalia’s famous quote, “The Court must be living in another world. Day by day, case by case, it is busy designing a Constitution for a country I do not recognize.”) O’Hare is a recent deviation from First Amendment case law. The Thomas-Scalia view likely commands a majority of the originalist-textualist Court today, and rightly so. The People of Florida should therefore not feel bound by the Court’s overbroad interpretation of the First Amendment in that case.
Theories of sovereignty which do not believe in divine law—or even in its subordinate, the law of human nature—do not recognize any constraints on sovereign power whatsoever. Some 18th-century theorists believed Leviathan’s authority was truly absolute. If Caesar chooses to exterminate every man, woman, and child in Lakarian City to avenge the crimes of one single rebel, then that was Caesar’s sovereign right.
No one today believes that. Even professed atheists embrace some form of natural law, such as the Universal Declaration of Human Rights.
The related argument that “corporate greed is causing inflation,” made by the likes of Elizabeth Warren, is indeed stupid. Corporations are exactly as greedy today as they were yesterday, a year ago, a century ago. Greed is constant. What has changed is concentrated market power, not greed.
I include myself in this. Starting at age 11 — especially the one-year period that included both the 2000 Florida Election Crisis and the September 11th attacks — I started trying to broaden my education in politics, so that I could be conversant in a range of issues, not just the social issues I’d always cared about. My entire economics education, and I am not exaggerating when I say entire, came from the Wall Street Journal editorial board. Not until AP Economics at Age 17 did I start absorbing some of the critiques. I still agree with a lot of what I learned at the Journal! But a more wretched hive of corporatism and cronyism you will never find.
Or: 13,000 words about sex and gender. Yes, you can run that through Google Translate.
NOTE: This post was originally published at my Substack. The footnote links go there instead of to the bottom of the page.
Introduction
This article is about gender identity and transgender people. After months of work, I finished the first draft on November 4th… 2015. I was in the middle of proofreading, about to post it, when I noticed an error. The error was completely fatal. My whole position on sex, gender, and transgender identity was based on it. I was totally wrong. I had to revise all my beliefs and start from scratch.
For years now, I have kept writing and rewriting this article. Each rewrite has been wrong in a new way. Then I have to go back to the bookshelf, read some more, listen some more, and try again. I keep trying because I feel I owe it to certain people in my life to do my very best to understand gender, and I don’t seem able to understand it better without writing about it… over and over again. At various points in this process, I have held just about every single belief about sex, gender, and transgender identities that it is possible to have, from far-right views to far-left ones. Each seemed strong when I started writing it up, and stupid by the time I finished. You are reading this version because, for the first time in fivesix seven years, I finished a draft and still found it reasonable.
Many people’s thinking about gender identity is limited by ignorance and knee-jerk prejudgment, often informed by religious dogma. I know because mine was, and perhaps still is. (I need not elaborate; “religious dogma causes bigotry” is such a pervasive idea in American literature, memoir, and coffee-shop chit-chat that every living American knows what I’m talking about.)
Many other people’s thinking about gender identity is constrained by peer pressure and fear—fear of financial consequences, social consequences, legal consequences, for saying the wrong thing or thinking the wrong thought—often informed by intersectional dogma. I know because mine was, and perhaps still is. (I recommend The New Thoughtcrime, a series of modest essays by someone who was very deeply engaged in online Discourse about gender, to anyone who has participated in that capital-D Discourse.)
I share this latest version in hopes that it will help others who are thinking through these same questions, and who are struggling with similar dogmas. I do have (a few) answers. I can’t promise they are right, but I think I can at least promise that I really tried. If nothing else, I hope that my thinking is careful enough to give you a jumping-off point for your own thinking. I will take it slowly and carefully. Now more than ever, it is better for me to be clear than to be concise.
However, if you don’t want to read this, please don’t. In the process of getting to the end, I will try to fairly consider ideas that some of my friends consider to be (at best) indulgence of mental illness and (at worst) an attack on civilization itself. I will also try to fairly consider ideas that some of my (other) friends consider direct attacks on their identity, ideas that they find unutterably hurtful. I do not wish to upset those friends, or you. If this sounds like an article where reading it would crush your spirit, or make your ears steam… don’t. It probably will, and how does that help you or me or anyone? Please know simply that I do not reject anyone’s personhood, that I deny no one’s existence, that no disagreement about a point of ontology and language (no matter how important) can possibly change how much I care about my friends… and then just close the tab.
For those that remain?
…Let’s start with a word about words. This will seem like a silly (and lengthy) digression, but bear with me.
Words are Funny Things
Words have meanings, but those meanings are often vague. Everyone agrees that a PB&J is a sandwich. Most people agree that a hamburger is a sandwich. But is a wrap a sandwich? How about a hot dog? Opinions conflict:
Vagueness of this type exists for many words. Take “table.” What, exactly, counts as a table? Does it have to have four legs? Any legs? Is a big flat rock a table? How about a small, curvy rock that wouldn’t really make a good table? What if you try to use it as a table anyway? Does the act of using a rock as a table make the rock a table? Is the ground a table? Yes, there are lots of things out there that, by common consent, are unambiguously tables. IKEA sells a lot of Unambiguous Tables. But there are also a lot of things that fall into a Table Gray Area. Whether we count those things as tables is simply a matter of convention, or even personal taste.
This is bad enough, but words aren’t merely vague. Their meanings can actually change, in many different ways, for many different reasons.
“Awful” used to mean “awe-inspiring.” The aurora borealis or an incredible work of art or the climax of a Bach’s Mass in B Minor might be praised as being “awful.” However, over time, “awful” was used in negative contexts so often that the word came to mean “very bad.” It is no longer accurate to call the aurora borealis awful. The aurora hasn’t changed. Our reaction hasn’t changed. But the word has changed.
The word “gay” used to be a synonym for “happy.” It eventually developed a secondary meaning which was synonymous with “rakish,” and, from there, the word further evolved to mean “sexually immoral.” It seems that it was then applied as a euphemism for homosexuals, since homosexuality was considered the apex of sexual immorality at the time. The euphemism eventually became so common that it overtook the original, non-euphemistic meaning. Now “gay” is a synonym for “homosexual.”
Sometimes, people even invent new words out of thin air. William Gibson invented the word “cyberspace” and put it in his 1984 cult-hit novel Neuromancer. It was just a nonsense string of letters, until, quite suddenly, it was a word. By 1990, it was ubiquitous among computer nerds. By 1994, the mainstream had got its hands on it. In 1996, Congress held hearings on it. And, in 1997, the Oxford English Dictionary formally recognized “cyberspace” as part of the English language.
Sometimes, people dig up old words and assign completely new meanings to them, meanings that are barely connected to the original word. For instance, since 1350, the word “mouse” has described this:
However, in 1965, an engineer named Bill English decided that this is also a “mouse”:
You can kinda see it, with the cord at the end being kinda like the mouse’s tail. There’s an analogous relationship between the animal and the computer accessory. But, thanks to Bill English, this is now a “mouse,” too:
With that mouse, you can no longer see any connection to a small furry creature. The two meanings of the word “mouse” have completely diverged.
Moreover, words only have meanings within larger systems called languages. To someone interpreting words according to the English language, “mana” is a kind of supernatural energy, or a key resource in the game Magic: The Gathering. In the Latin language, however, “mana” – the exact same set of four letters – is an action meaning “pour out.” If you interpreted the word “mana” according to the Quenya language, a language which J.R.R. Tolkien made up entirely by himself, it has the same meaning as the word “which” has in English. There’s nothing special about these letters that links them to a meaning. In the Japanese system, you can’t even write the word “mana,” because Japanese doesn’t use the same alphabet, or even quite the same concept of “words.”
We humans have found or created meanings in ourselves and the world around us, then we tied those meanings down to some completely arbitrary markings that we came up with. The meaning of each particular marking changes from community to community and from year to year, in thousands of different ways.
My long-winded point here is just this: words are tricky things. Try and pin down their meanings, and, sooner or later, they tend to slither away and mean something else. Even when their meanings seem relatively fixed, words can be vague and may contain a multitude of meanings. Their meanings are determined not by some verbal science, but by sheer, fickle, social convention.
On the other hand, although words are completely made up, the meanings beneath the words are often real. Take a look at this:
I don’t know what you call that stuff. Maybe it’s “water” to you. Maybe it’s “vatten” (Swedish), “aqua” (Latin), 水 (Japanese), “unga” (the extinct Sacata language), or “blQ” (Klingon). Maybe you’re an alien who has never seen it before, and you have no word for it. Or maybe you live under a totalitarian regime which, for political reasons, makes you refer to this stuff as “milk,” or not talk about it at all.
But the stuff is real regardless. The stuff in that picture will get solid at 0 degrees Celsius and turn to gas at 100 degrees C. If you grab one molecule of it at random, it is likely (though not certain) that it will turn out to have two hydrogen atoms bonded to one oxygen atom. If it floods your village, it will wreck your house and quite possibly kill you—even if the government tells you it doesn’t exist and you shouldn’t think about it. The existence of water is an objective fact, even though the name we give it is a matter of convention.
A contested sentence
Here’s a sentence for you: “Transwomen are women.”
Is this sentence true?
We can very easily make it true. I have just invented a new language, “Jamesian.” The Jamesian language is identical to English in every way except for two things: in Jamesian, the word “w-o-m-e-n” is a synonym for “celestial bodies,” and the word “t-r-a-n-s-w-o-m-e-n” is a synonym for “comets.”
So, in Jamesian, the sentence “transwomen are women” is equivalent to “comets are celestial bodies.” I trust we will all agree that comets are celestial bodies. Therefore, in Jamesian, the sentence “transwomen are women” is true. But it isn’t a sentence about Chelsea Manning and Caitlyn Jenner; it’s a sentence about Haley’s and Hale-Bopp. It’s true, but not in a way that is at all connected to what most people mean by it.
If we want to find out whether the sentence “transwomen are women” is true in the English language (instead of in Jamesian), then we need to find out what those words “transwomen” and “women” mean in English. As we saw in our brief look at words above, that… might get tricky.
What is a woman?
When asked, “What is a woman?” many modern people will say something like, “A woman is a human being with two X chromosomes.” This is silly, and we should put a stop to it right now.
The English language has had the word “woman” for over a thousand years. Every other human language that has ever existed has one or more synonyms for “woman.”
Some three thousand years ago, the Book of Genesis was compiled, and it said, “זֹאת הַפַּעַם עֶצֶם מֵעֲצָמַי, וּבָשָׂר מִבְּשָׂרִי; לְזֹאת יִקָּרֵא אִשָּׁה,” which (according to translators) (no, I do not know Hebrew) means almost precisely the same thing as the English sentence, “This, now, is flesh of my flesh, and bone of my bones; she shall be called Woman.”
Nearly four thousand years ago, in the Code of Hammurabi, written in cuneiform so ancient I can’t even copy-paste it because Unicode doesn’t support it, the law stated: “If a man take a woman to wife, but have no intercourse with her, this woman is no wife to him… If a man wish to separate from a woman who has borne him children, or from his wife who has borne him children: then he shall give that wife her dowry, and a part of the usufruct of field, garden, and property, so that she can rear her children.”
We discovered sex chromosomes in 1905. If a woman were defined by her sex chromosomes, then we couldn’t have understood the word “woman” before 1905. But we’ve had a remarkably consistent understanding of the word “woman” for thousands of years. So, while certain sex chromosomes may be closely correlated with people we understand to be “women,” women cannot be defined by their sex chromosomes. Something else is at work here, a distinction even Hammurabi and Juvenal and Shakespeare could understand with their primitive science. What was it?
Well, why don’t we go look? The first edition of the Oxford English Dictionary began its long publication process decades before sex chromosomes were discovered, so let’s see what the London Philological Society thought! After all, one of the reasons the Oxford English Dictionary is so good is because it is so comprehensive, reaching back as far as a word’s history can go. It will tell us both the contemporary and past understandings of “woman.”
The OED first defined “woman” in 1928 as “an adult female human being.” According to the OED citations, this meaning of “woman” dates back to at least 893 AD. And it’s an okay definition… but it seems to dodge the core question we’re trying to answer. What, exactly, is a “female”?
The OED first defined “female” in 1901 as “belonging to the sex that bears offspring.” Citations for that understanding of the word go back to 1328 AD.
So, at least according to the London Philological Society of 1901-1928, the meaning of the English word “woman” is “an adult human being belonging to the sex that bears offspring.”
That fits in nicely with the definition given by Webster’s Dictionary of 1880. In Webster’s, a “woman” is “the female of the human race, grown to adult years,” and “female” means “belonging to the sex which conceives and gives birth to young.” So, in both cases, the essential characteristics of a “woman” are adulthood and the capacity to give birth.
Should we trust these two dictionaries to properly reflect the popular understanding of their day? After all, dictionaries back then could be notoriously prescriptive rather than descriptive. Maybe the dictionaries were trying to force their view of the word “woman” on a population with a broader understanding of femaleness?
It’s a fair question, but general usage seems to have agreed that a “woman” is, essentially, somebody who can give birth. In the Supreme Court decision Bradwell v. Illinois (1873), Justice Bradley and two co-signers wrote an infamous concurrence which stated, “The paramount destiny and mission of woman are to fulfil the noble and benign offices of wife and mother.” (They then used this as a shabby excuse to deny women the right to practice law. We will return to this.)
More positively, Sojourner Truth implied in her “Ain’t I A Woman?” speech (1851) that the essential difference between men and women is their childbearing potential:
“I could work as much and eat as much as a man – when I could get it – and bear the lash as well! And ain’t I a woman? I have borne thirteen children, and seen most all sold off to slavery, and when I cried out with my mother’s grief, none but Jesus heard me! And ain’t I a woman?… Then that little man in black there, he says women can’t have as much rights as men, ’cause Christ wasn’t a woman! Where did your Christ come from? Where did your Christ come from? From God and a woman! Man had nothing to do with Him.”
The idea that a “woman” is somebody who can have babies also seems to fit with our more ancient documents. In Genesis, shortly before Adam names Eve “woman,” God commands the man and the woman to “be fruitful and multiply” and, right after, to become “one flesh” as part of that mission. Clearly, the God of the Book of Genesis thinks that the ability to make babies from sexual intercourse was central to the meaning of both man-ness and woman-ness. The Code of Hammurabi features several laws (including the one I cited above) that only make sense if the word “woman” meant “someone who can have sexual intercourse with men and bear children therefrom.”
And so it seems that, for most of human history until at least the early 20th century, the words “woman,” “female,” and their synonyms in various languages were used to describe people who could gestate and give birth to babies. “Woman” was a biological category, not a social construction, although many social implications arose out of the biology. Indeed, as we saw in Bradwell, those social implications were often greatly exaggerated, then used to oppress women, plus anyone else who didn’t conform to social expectations of their sex. Nonetheless, the definition of “woman” was essentially biological.
Let us call this definition “the ancient definition of woman,” or “womanA” for short.
Addressing some difficulties with the ancient definition
There are many women who are not capable of giving birth to children right this instant. Women who are not currently pregnant have the potential to conceive and bear children, but aren’t actively exercising that potential. Some never do! Young girls are still in the process of developing the capacity to bear offspring, and can’t exercise it at all until they do. Old women generally had the capacity to bear offspring at some point, but no longer do, because the parts have stopped working. Others may have had their childbearing capacity compromised (even destroyed) by disease or accident or birth defect or medical intervention, all of which can damage the adult female reproductive system.
They are all still women, of course. It’s human nature to have two arms and two legs, but we don’t say that somebody who’s lost an arm is less human! The human nature is still there, and still yearns for its missing limb; the body has simply been maimed. Some serious injuries can be cured. Often, because of the current limits of medical science, they cannot. But we still recognize that the body of someone who has lost an arm is the body of a human whose limbs have been damaged; amputees are not another species. Likewise, a woman who has lost a uterus is still a woman—just a woman with a reproductive system that is currently falling short of its innate potential.
There are also some people, called intersex people, for whom the body has developed in such an unusual pattern that it is not even clear what sex it was trying to fulfill—if any. Whenever transgender issues are explored, intersex people tend to be pulled into the discussion and tossed around like a football in order to make some point or other. (If I got a dollar every time someone mentioned Complete Androgen Insensitivity Syndrome in order to unsettle the ordinary classification of “biological female,” I’d buy dijon ketchup.) Some intersex people are justifiably angry about being used this way; others primly petulant.
However, in our case, we can set the question aside. The status of intersex people is not very relevant to our discussion of what “woman” means. It is possible that some people who are intersex fit the definition of “woman,” and that others fit the definition of “man.” Some may constitute a third sex, or multiple other sexes, while still others never really figure out where they “fit,” or determine that they do not fit anywhere. But we cannot answer whether an intersex person is a woman until after we know what “woman” means. The conditions of intersexed people (and those conditions are incredibly complex and varied) therefore cannot shed light on the meaning of “woman” in the first place.
A novel definition
Words can change meaning over time. Perhaps the word “woman” has changed since the early 1900s. Even if it hasn’t, perhaps it should change.
The word “gender” once referred, almost exclusively, to certain grammatical structures. However, in 1954, sexologist John Money repurposed the word (much as Bill English repurposed the mouse), and began talking about “gender” as the social dimension to the biological categories of sex. In his eyes, the ancient distinction between who could bear children (woman) and who could beget them (man) was less important, and actually less real, than the distinction between performing the social roles generally expected of women (femininity) and performing the social roles generally assigned to men (masculinity). Sex was about biology; gender was about social roles. Money’s research was later exposed as grossly erroneous and his practices more than a little creepy, but he had developed both a popular and an academic following, so his ideas stuck around (despite the David Reimer tragedy).
Throughout the 1970s and 1980s, Money’s “sex/gender distinction” flowered in academia, although the line between them was pretty muddy and moved around quite a bit. During those years, parts of the feminist movement advanced arguments that gender (the social performance of femininity), was the real heart of what it meant to be a woman, not biological sex. Indeed, second-wave feminists routinely argued that the social and cultural distinctions of gender and the biological distinctions of sex had absolutely nothing to do with each other. They thought the reason biological women tended, on average, to “perform femininity” better and more often than the average biological man was not because of biology (either directly or even indirectly), but because of a system of oppression, known as patriarchy, that victimized certain people, who became known as “women” as a result of their victimization.
By the year 2015, drawing on these theories, academia had settled on an alternative version of what “woman” means. While there is some disagreement on particulars, I think the broad view of academia is nicely captured by Nottingham philosophy professor and feminist activist Katharine Jenkins: a woman is a human who has “a female gender identity.”
This raises a further question: what is a female gender identity? In Jenkins’ telling, you have a female gender identity if you have an “inner map” which serves to “guide someone classed as a woman through the social and material realities of someone who is so classed.” Again: what does it mean to be “classed as a woman”? You have been classed as a woman, in Jenkins’ telling, if you have been “targeted for subordination on the basis of actual or imagined… evidence of a female’s role in biological reproduction.”
So a “woman” is someone who has, not a female sex, but a female gender identity—an “inner map” which is defined by oppression based on people thinking you can become pregnant (even if you can’t). We can call this definition “the novel definition” or, for short, “womanB.”
(There are more versions of womanB, which we might call womanB1, womanB2, and so forth; Jenkins herself explores several in a later paper. One version of womanB I encountered, which I found very intriguing, is the definition of a woman as “someone with a female soul.” However, all these definitions are built around similar definitions of gender identity, which makes them similar enough for the purposes of this essay. In my humble opinion, Jenkins’ is the strongest of these definitions, so, in the interest of steelmanning, we’ll use her womanB as “the novel definition.”)
It is worth noting that transgender activists are not the only people who believe some version of the novel definition. Many gender-critical feminists, pejoratively known in the transgender community as “TERFs,” also define womanhood as “having accrued certain experiences, endured certain indignities and relished certain courtesies in a culture that reacted to you as [a woman],” such as “suffer[ing] through business meetings with men talking to their breasts or… [having] the onset of their periods in the middle of a crowded subway.” Gender-critical feminists (who are often inspired by second-wave feminist thought) often agree with transgender activists that the “biological essentialism” of the Ancient Definition is irrational and must be rejected in favor of womanB. “TERFs” simply deny that transwomen are capable of having the “certain experiences” which, they believe, define womanhood. Many “TERFs” are (or were) academics who participated in the academic campaign to sever (performed) gender from (biological) sex and adopt the novel definition. As a result, most academic feminist discussion of “The Woman Question,” (to the extent that it is suffered to exist), is between these two camps of WomanB, rather than between WomanA and WomanB.
Everyone in academia recognizes that the novel definition is not what most English-speakers mean by “woman” in regular speech today. The dictionaries all still list the ancient definition first. But academics have decided that this is what the word “woman” should mean, and they have launched a determined effort to change the meaning of the word in society as a whole.
Academics have succeeded in projects like this in the recent past: from the dawn of the English language until less than ten years ago, the canonical definition of “marriage” was, “the state of being joined as husband and wife according to law or custom,” and this reflected common usage. Sen. Barack Obama was elected President while publicly endorsing this definition of marriage. In just one decade, both common usage and the dictionaries have changed, because the culture broadly decided that the old definition and its baggage were too exclusive. Perhaps the culture will listen to academics on this, too, and change the definition of “woman.” Perhaps we should!
But before we consider that, let’s return to our contested sentence, “transwomen are women.” We now have two competing definitions of “women.” Now let’s ask, what are “transwomen”?
Transwomen are…
Some people experience an interior sensation that their unambiguous physical sex is incorrect. That is, some people with fully-functional penises and testes, even some who have actually fathered children, nevertheless have a powerful feeling that, in the deepest and truest sense, they are not men. Their bodies reflect the full flower of manhood, but their brain, their psyche, perhaps their very soul says that their bodies are wrong, that their physical sex is (something like) a birth defect. Often (but not always), such people describe themselves as “trapped in” or “born into” the “wrong” body. They sometimes speak of their physical sex as “assigned sex,” as though their physical sex was imposed upon them by their parents and delivery-room doctors, rather than accurately observed.
(To be sure, there are some intersex persons whose ambiguous physical sex is not accurately observed at birth, and it is indisputably fair of them to describe their birth certificate sex as “assigned.” However, virtually all self-identified transwomen were born with perfectly healthy, correctly observed male reproductive capabilities. I am happy to agree that some or all of the analysis that follows will not apply to intersex people who identify as transgender.)
This feeling of being the wrong sex is not a passing fancy. Many who experience this powerful sense of dysphoria have tried to ward it off, or hoped to grow out of it. Many do! But many others find this sense of deep wrongness as persistent as it is pervasive. Someone like me, with a healthy male body and a male gender identity to match, can only imagine how upsetting it would be to find my body betraying me, growing parts where it feels like it shouldn’t while forgetting to include others it feels like it should. I would survive without my penis and testicles, but, if I were to lose them in an accident of some sort, it would be a profound loss, the hormonal changes would reshape my personality in ways I can’t predict, and I would be dealing with the changes and grief for a long time. Transgendered people attest that they live with something like that loss every day, that they’ve done so since childhood, and that they are constantly reminded of it in ways I would never have to be.
As Julia Serano wrote in Whipping Girl: A Transsexual Woman on Sexism and the Scapegoating of Feminity:
I did not have the quintessential trans experience of always feeling that I should have been female. For me, this recognition came about more gradually. The first memories I have of being trans took place early in my elementary school years, when I was around five or six. By this time, I was already consciously aware of the fact that I was physically male and that other people thought of me as a boy. During this time, I experienced numerous manifestations of my female subconscious sex: I had dreams in which adults would tell me I was a girl; I would draw pictures of little boys with needles going into their penises, imagining that the medicine in the syringe would make that organ disappear; I had an unexplainable feeling that I was doing something wrong every time I walked into the boys’ restroom at school; and whenever our class split into groups of boys and girls, I always had a sneaking suspicion that at any moment someone might tap me on the shoulder and say, “Hey, what are you doing here? You’re not a boy.”
Take this, then throw in the hellacious hormonal chaos that is puberty, add the development of sexuality, and you’ve got a recipe for some serious cognitive dissonance and some genuine Grade-A suffering.
Trans people exist. Their experiences are relatively consistent (within a range of expected variation) across a huge range of first-person accounts. (Serano’s is worth reading. I’ve only quoted a slice of it, but would like to quote about ten pages of this book if it wouldn’t violate copyright law.) They collectively insist that their judgment about their gender identity goes beyond a mere feeling or intuition, beyond a judgment, and amounts to a true sensation as vivid as taste or proprioception. These accounts are difficult for cisgendered people to understand, but cannot be dismissed.
A common question the layperson asks at this point is, “What’s wrong here?” Are trans people afflicted with a mental disorder (which alienates them from their healthy bodies, akin to anorexia) or a physical disorder (such as an accident of birth where a female-typical brain or identity or sex-hormone receptor pattern developed inside an otherwise male body)? In other words, as the transition-skeptical Dr. Paul McHugh bluntly put it, is the fault in the mind or the member? Every mainstream American medical association used to answer, unequivocally, that this was a mental disorder. Today, every mainstream American medical association answers, unequivocally, that it is a physical disorder. It certainly seems to be the case that physical causes outside the reproductive system contribute to the brain’s sexual self-identification. Is that dispositive?
Fortunately, we don’t need to answer this question now. For now, it is enough to affirm that transwomen (and transmen) exist and that they suffer from this terrible sense of bodily alienation and/or dysphoria. This dysphoria, for many of them, has been intractable in the face of mental health treatment, but has been relieved, to greater or lesser extent, by changes that make their bodies (or at least their social presentation of their bodies; for example, how they dress) appear and function more like the sex that matches their “inner map,” their interior sense of gender identity. (These changes may range from meaningful but superficial changes in mannerisms to major surgical interventions.)
We can now offer a provisional answer to our original question:
Are Transwomen Women?
If we are using WomanA, the ancient definition, then, no, transwomen are not women. No matter what alterations they make to their social roles or their bodies to more closely resemble women, no matter the shape of the brain or the configuration of their hormones, no matter how intensely they feel they ought to be women, transwomen will never belong to the class of human beings who are, by their very nature, capable of pregnancy and birth. There are women who cannot become pregnant or give birth, but this is because their reproductive systems are either underdeveloped, aged, or diseased. Transwomen, by contrast, develop perfectly healthy reproductive systems—male reproductive systems. Under the ancient definition of men and women, transwomen are just men, and there is no surgery, no language, no amount of acceptance that can ever change that.
On the other hand, if we are using WomanB, then womanhood is defined by that “inner map.” If you feel interiorly that being in the boys’ bathroom is naughty but the girls’ bathroom is where you belong, that playing with Barbies is fun but playing with Hot Wheels is not, that you should wear dresses but not tuxedos, or that being sexually penetrated is just right for you while performing sexual penetration is just somehow not… then, regardless of your anatomy or biological capacity, your “inner map” has at least some correspondence to the “inner map” that our culture most frequently associates with the female sex! Transwomen typically report many or all of these experiences. Under the novel definition, that makes them women!
Under WomanB, no single person matches every sensibility and every stereotype on the “female inner map.” Moreover, that map is largely dependent on culture. Because of this, under WomanB, “womanness” becomes, not a binary, but a spectrum. People who mostly correspond to the “female inner map” are classed as women, people who mostly correspond to the “male inner map” are classed as men, and others may fall in the middle (identifying, perhaps, as non-binary, or bigender), while others may end up entirely perpendicular to the spectrum, off on some new frontier of gender performance (identifying, perhaps, as agender, or genderfuck, or even as an attack helicopter, as one transgender writer vividly depicted in a must-read short story). Indeed, under WomanB, some transwomen may have a more valid claim to “womanness” than butch lesbians, because butch lesbians often have significant divergence from our culture’s “female inner map”!
So:
“Are transwomen women?”
“Yes or no, depending on which definition of ‘woman’ you’re using.”
There you go, end of article, you can all go home now! Question answered! Here’s my closing quote!
…
…
…that’s not cuttin’ the mustard, is it?
“It Depends” Is Usually Enough
Okay, you may think “it depends” is a pretty trivial answer. You’re right! We aren’t much closer to a definitive yes-or-no conclusion now than we were a few pages ago, back when I was making up the Jamesian language and saying that “transwomen are women because comets are celestial bodies”!
But why would we ever expect or need a definitive conclusion? This tension between related definitions exists for a lot of words. It’s not weird. And it’s not normally a problem.
Is gravity a law? It depends on which definition of ‘law’ you’re using. If you’re using LawA, where a law is a rule of right conduct for people in a community, then of course gravity is not a law. (In fact, your government will be quite impressed with you if you find a way to break it.) But if you’re using LawB, where a law is a theoretical natural principle derived from particular facts about a given phenomenon, then of course gravity is a law after all.
Is Miyazaki’s Spirited Away queerer than Brokeback Mountain? Depends. If you’re using QueerA, where queer means “strange, odd, peculiar, or eccentric,” then, yes, Spirited Away‘s bizarre, unsettling fairy world is wayyyy queerer than some conventional Western gay romance. But if you’re using QueerB, where queer is defined as the antonym of “heterosexual,” then Brokeback Mountain is clearly queerer. (CHALLENGE: Say that ten times fast.)
Usually, when a word has multiple meanings, it’s clear from context which definition is being used, and we are all generally quite happy to accommodate ourselves to whichever definition is being used within a particular conversation. When I say that the U.S. Constitution is “the supreme law of the land,” someone might disagree with me by insisting that, in fact, decrees of the Supreme Court are America’s supreme law, or bring up Christopher Caldwell’s contention that the Civil Rights Act of 1964 has supplanted the Constitution. But nobody will insist, through an extended argument, that I am completely wrong because the First Law of Thermodynamics is America’s supreme law and the Constitution isn’t even, properly speaking, a law.
Yet, when it comes to the word “woman,” that’s precisely what we see, on all sides: users of WomanA insist that users of WomanB are refusing to follow the science of biological sex, while users of WomanB insist that users of WomanA are bigots who want to force everyone into arbitrary gender roles. Not only has agreement been difficult; simple conversation has turned out to be nearly impossible. Some jurisdictions now require private business owners to use WomanA in deciding who can use the women’s bathroom. Other jurisdictions now require private citizens to use pronouns consistent with WomanB in their place of employment or face legal penalties.
This Is Odd
The thing is, there’s no obvious reason why WomanA and WomanB can’t exist in linguistic harmony, like LawA and LawB.
The concept of feminine gender performance, as opposed to female biological sex, is a genuinely useful one. In the past, we only had one word that meant both things, and it led us down some really awful cul-de-sacs. You can pretty easily read Bradwell v. Illinois (the case that denied women the right to be lawyers because their place was in the home) as an exercise in equivocation, in which the court correctly acknowledged the existence of feminine gender roles, but not only failed to acknowledge the contingent, culturally-inflected aspects of those roles, but actually conflated feminine gender roles (WomanB) with female biology (WomanA). This allowed the justices to reach an absurd conclusion: that having female biology entailed playing, always and everywhere, a feminine gender role.
For at least several centuries, all of society was structured around this equivocation. Because of it, wives had no separate legal existence from their husbands. According to 18th-century common law scholar William Blackstone, her “very being… is suspended during the marriage, or at least is incorporated into that of the husband[,] under whose wing, protection, and cover, she performs everything.” Whether this was actually true when Blackstone wrote it is disputed; that it became true as Blackstone came to be a revered legal authority, however, is certain, and this doctrine shambled on well into the 20th century. A wife in, say, 1830 New York could not vote; could not hold property; could not enter a profession; faced significant obstacles to obtaining an education; was subject to open discrimination by private parties; and was frighteningly vulnerable to being put into an insane asylum. Women were not even legally entitled to “separate but equal” treatment; equal rights under the law simply didn’t pertain to them. Any biological woman who deviated from these rigid gender-role expectations was understood to be defective.
The consequences were obvious, and often written about. What American high school student has not been assigned Charlotte Perkins Gilman’s “The Yellow Wallpaper” or Kate Chopin’s The Awakening or Zora Neale Hurston’s Their Eyes Were Watching God in English; or the Seneca Falls Convention’s Declaration of Sentiments, or Mary Wollstonecraft’s Vindication of the Rights of Women, or Virginia Woolf’s A Room of One’s Own in History? These works are consistent and persuasive on one central point: for quite a few perfectly sane, healthy, gifted women, the system made it suck to be female. This system—you might even call it a “patriarchy”—pathologized normal, God-given virtues.
One hopes that, now that our language can accommodate both understandings of “womanness,” we would recognize the equivocation from a mile away and be able to avoid another Bradwell, or anything like it.
It’s not hard to imagine a world where both meanings of “woman” are taken fully aboard the English language and coexist in peace. Again, this is not weird. It would not be hard to sort out the context clues: If we’re talking about biological factors, like menstruation, it’s a clear cue that references to “women” refer to biological sex. When we’re talking about social roles, like being the more available parent, it’s a clear cue that references to “women” refer to gender performance.
This fluid use of the different definitions could even extend to pronouns. To an English speaker, it’s jarring, but I am told that there are a number of human languages that don’t make sex distinctions on pronouns, including Swahili and spoken Mandarin. (For our part, even we don’t make sex distinctions on second-person pronouns, which sounds just as jarring to Arabic speakers as the sentence “I love my wife; he is so kind,” sounds to us.) Prominent science-fiction novelists have been trying out various kinds of pronoun fluidity for decades, from Ada Palmer’s recent Too Like The Lightning quartet back to Ursula K. LeGuin’s (wonderful, highly recommended) The Left Hand of Darkness in 1969.
In a world where WomanA and WomanB weren’t at each other’s throats, you might easily navigate between them, saying something like: “Remember Jake? He used to work over in Accounting? Yeah, he fathered two kids, became a stay-at-home mom, and she seems really happy. She was absolutely doting on them at the park. But I still miss seeing him shirtless in the gym.”
Does that fluidity feel grammatically strange? Is it unfamiliar? Absolutely. But perhaps it’s not as odd as you think. I’m a romantic, and I love movies that make me cry. My wife is stunningly (jaw-droppingly) oblivious to romance and openly hostile to tear-jerkers. So, for years, we’ve joked that I’m “the girl in our relationship.” No one is confused when we make this little (very little) joke… and the reason the joke works is because there’s a sense in which it’s true. No one would suggest that my wife biologically fathered our kids or that I nursed them—to do so would insult the suffering she went through as a biological mother—but all our friends recognize the ways in which I am indeed “the girl in our relationship.” I’m sure that you can think of occasions in your life where you’ve switched between WomanA and some version of WomanB and back without a second thought.
Besides, imagine explaining this sentence to yourself just three years ago, in 2019: “Happy Blursday! Now quit doomscrolling, grab a quarantini and please keep social distancing.” In 2019, that sentence was meaningless in the English language. Now you know exactly what it means. Go back to 2005, and vast swaths of very normal lingo (like “OP” for “original poster” or “ghosting” for ending a relationship without a breakup, even “binge-watching”) didn’t exist yet. Conventions change! Language expands!
Yet, over in Gender World, none of this seems to be happening. Right now, you can get in rather a lot of trouble for saying, “transwomen are women in one sense, but not women in another sense.” It’s not like I’m breaking ground here. A decade ago, trans-inclusive feminist philosopher Jennifer Saul reached a conclusion nearly identical to mine… but then she rejected her own (correct) reasoning—and I quote her directly here—”simply [because] of political unacceptability.” For an academic, this is an astonishing admission.
Something has gone very wrong. The ordinary process of language evolution does not involve police arrests. We have never jailed anyone for refusing to use the Oxford comma, despite the obvious moral depravity of such recusants. And yet here we are.
The New Equivocation
I think, to this point, I have not broken any new ground or said anything especially controversial. I’ve given some notes on language, tried to explain two sides of a language debate clearly and evenhandedly, with appropriate citations, and pointed out that this particular language debate is unusually heated. I hope that I have succeeded. But now we come to the part of the article where I say something that I think is fresh… hopefully insightful, but certainly controversial.
I think the reason this particular language conflict is so heated is because of a determined campaign to erase womanA—the ancient definition, the biological female sex—from the English language and from the human imagination. There can be no cease-fire or modus vivendi at this time, because the existence of womanA as a concept that can be namedoffends womanB supporters—not all of them, not even close, but a critical mass of the influential ones.
J.K. Rowling’s great cancellation controversy started because of a tweet where she snarkily suggested that the English language has a word for “people who menstruate.” She was obviously referring to WomanA. For daring to suggest that WomanA is still a valid, useful definition in the English language, J.K. was roundly condemned by polite society, despite her impeccable left-wing credentials, and she faced intense financial pressure to recant her heresy. She chose to weather the storm (as few can, since most of us don’t have billions), but, even so, it seems safe to say that there will be no more favorable comments about Ms. Rowling in future episodes of Doctor Who. It’s now much less likely she’ll ever be knighted. Rowling has brushed off her critics so she can continue pointing out that biological women exist, and are a separate category from transwomen in some important respects. But lots of people—most people—care about their peer reputations. Under similar pressure, they would cave.
And, of course, that’s just what most of the great and the good are doing. CNN won’t say “woman” when “individual with a cervix” will do. The Brighton and Sussex University Hospital has replaced the word “mother” with “birthing parent” while handwaving “breast milk” into “human milk,” joining a growing trend—one that the United States Government, under President Biden, has now adopted. Planned Parenthood, of all places, now uses “pregnant people” instead of “pregnant women.” This is not mere politesse; it is now de rigeur for professors at medical colleges to insist that both gender and biological sex are socially constructed, and that men—in both the social and the biological sense—can become pregnant. As we have seen, this is false, and, moreover, it is exactly as false as the Supreme Court’s claim a century ago that women are incapable of practicing law.
The KBJ confirmation hearings occurred months too late in the editing process for me to add the example to the text, but just in time for an image.
If women and mothers can be erased from the process of childbearing and mothering, perhaps it’s not surprising that there is a growing “anti-genital preference” movement. This group contends that, if a person is sexually attracted to biological women (womanA), but not to everyone who identifies as a woman (womanB), including the ones with penises, that “genital preference” is a form of transphobia—an irrational and damnable bigotry toward transwomen, rather than natural attraction toward people you can make a baby with.
This movement is still mostly contained to academia and the fringe, but everything in this article was academic and fringe two decades ago. If you’re already erasing the very existence of biological sex difference with the phrase “birthing parent,” if Twitter already locks your account for “hateful conduct” if you write the words “Assistant Secretary of Health Rachel Levine is a man” (try it! it’s true!), then why wouldn’t you take the next step and label the basic biological building blocks of sexual attraction, coupling, and reproduction “hateful bigotry”? Sure, that erasure reduces all straight men and lesbian women to “transmisogynists”—but that’s a small price to pay for justice!
“Hey,” you ask, “are these semantic debates really where we should focus our attention?” After all, nobody died because Xavier Becerra won’t say “mother”. Meanwhile, culture warriors are fighting about book-banning campaigns and about whether transwomen should be admitted to certain bathrooms or certain sports. Prisoners (both transwomen and “biowomen”) face heightened risks of rape, and trans activism is increasingly coming into direct and (for all parties) utterly terrifying conflict with parental rights. Why bother with semantic arguments about nothing when I could be talking about all that?
Normally, I agree. 99% of semantic arguments are about nothing, and I avoid them. I spent a long time (and many drafts of this article) trying to pull my usual trick, where I agree to all the labels my opponents assign so I can move on to discussing the actual substance.
But, in this case, the semantics is the substance.
Do you think conservatives actually care about women’s sports? Maybe some have been persuaded to care, but, come on, the median conservative spent forty years making jokes about the WNBA’s bad ratings and wondering out loud why anyone bothered with women’s sports above the high school level at all. But women’s sports provide a site where conservatives’ broad concern about the erasure of biological sex is highlighted: there is an objective, undeniable, and incredibly obvious biological difference exposed by women’s sports that is absolutely not a “social construction” or “performance of gender.” If our society can pretend WomanA has no meaning in women’s sports, then it can erase WomanA from anywhere and anything. So that’s where gender conservatives plant their flag.
Meanwhile, in Canada, trans activists have been working for a number of years, with modest success, to defund and close a women’s shelter, with a side of occasional vandalism. The reason for their opposition is that the shelter is “trans-exclusionary,” because it identifies as a women’s shelter but does not serve all women (womanB). The shelter responds that it does indeed serve all women (womanA), including transmen. There are ample local resources for transwomen facing domestic violence or rape, and the shelter refers transwomen to those resources when they get the call—but their shelter’s mission is to serve women in the sense of womanA, rather than womanB. Their decision to act as though this distinction exists and can matter in some contexts, even in progressive Vancouver, means this is where gender progressives plant their flag.
The semantics is the substance.
Trans advocates routinely accuse Abigail Shrier and Ryan Anderson of being “dangeorus and harmful” and of calling for the “extermination” of trans people, leading even the American Civil Liberties Union to demand the forcible suppression of their work. I hope it goes without saying that neither Shrier nor Anderson call for anything even remotely of the sort. You can read their blogs, you can read their books (I’ve read Anderson’s). They very clearly oppose anti-trans persecution of every kind, and (it should go without saying) they find the idea of “exterminating” trans people as reprehensible as exterminating any other group.
However, Anderson disagrees with the claim that transwomen are (in every possible sense) women, and presents his reasons for thinking that way. Shrier disagrees with the claim that teenagers’ self-identified genders should always be taken at face value. The ACLU and the rest of the movement holds that this disagreement, by itself, is a so-called “act of violence” which should be banned.
In other words… the semantics is the substance.
In the past, conservatives controlled the commanding heights of culture through media, academia, journalism, and politics. Many of them insisted on equivocating between womanA and womanB by subsuming feminine gender performance totally into female biological sex. Not all of them did this, not even close… but a critical mass of the influential ones did. You see it in Bradwell and in the anti-suffragette movement (which, interestingly, often cited evolution, rather than religion, to support the equivocation). Even as recently as much of Phyllis Schlafly’s writing and speaking, you see this conflation. They did this in the name of societal safety, trying to hold gender-based chaos at bay through what many of them surely realized was an oversimplification. Yet their good intentions were all it took to build the systems of female oppression that Charlotte Perkins Gilman and Myra Bradwell fought against.
Today, progressives control the commanding heights of culture. Rather than eliminating the equivocation, many of them (not all, not even close, but a critical mass) have reversed it, by insisting on subsuming female biological sex totally into feminine gender performance. They do this in the name of individual safety. They point to high rates of suicide and mental illness among trans people, blame these high rates on the “transphobic” lack of “acceptance”—typically characterized as treating WomanA as being, in some respects, distinct from WomanB—and then accuse those who continue using WomanA of promoting hate. The systems of oppression that result from these good intentions are still in progress, but their contours are starting to come into focus. There’s a reason the title of this article is in Latin: I believe Latin is likely evade the automated censorship algorithms that, for the most part, determine the boundaries of human discourse in 2022 America. Those algorithms are not fans of discussions that even raise questions about the progressive account of womanhood.
Yet the language won’t be able to accommodate both meanings of “woman” until we stop trying to erase either one of them.
If “WomanA” Did Not Exist, English Would Be Forced To Invent Her
Every language in the history of humanity has had a word meaning “the sex that bears offspring.” This is the sex that has babies. It’s also the sex that bleeds each month. It’s also the sex that has vaginas, and boobs, and which produces “human milk.” It’s the only sex to get cervical cancer, thus the only sex that needs to be vaccinated against it. It’s the only sex whose natural estrogen almost always dominates over androgen. It’s the sex that is, for whatever reason, more prone to strokes, but less prone to dying of COVID-19.
This is not simply a series of coincidences. The “birthing person” in a relationship always has ovaries, a uterus, a birth canal, and childhood memories of having a first period. This is because birth is linked to a complex biological system defined by sex—in English, we even call the act that activates this system “having sex.” It’s weird that this needs to be said, but the people who say “birthing person” seem to want everyone to think that it’s all just astronomically unlikely happenstance that so many “birthing persons” turn out to carry tampons (a biological marker of sex) in a purse (a social marker of gender).
Nor is this some minor difference blown out of proportion by ignorant people, like hair pigment or melanin. Women’s biological differences from men are substantial, they are not socially constructed, and they mean that, inherently, women face both unique challenges and unique opportunities across a broad swath of their lives, compared to men.
Yes, it is stilldisputed which specific differences between men and women are biological and which are not, and there is a lively “nature-or-nurture” debate. But some differences are clearly biological. No reputable psychologist takes the “nurture” side of the “nature-or-nurture” debate when the question is, “Why does this person have a uterus?”
Remember back at the start, when we looked at a lake and called it “water”?
And then remember we spoke of a tyranny that might demand we stop talking about the lake, for political reasons? To pretend it’s filled with milk, or that it’s not really there?
Perhaps our hypothetical tyranny isn’t quite that bad. Maybe we are allowed to acknowledge the lake water, but only when we are actively drinking it (during which time we are allowed to call it a “thirst-slaker”) or when it’s flooding the village (at which point we are instructed to call it in to 911 as an “enfloodening substance”). But our inability to name the thing makes it impossible for us to see the thing, which in turn makes it impossible for us to study the thing, to know the thing, to interact with the thing. In a society where “water” is erased from the language, recognized only through facets of itself rather than as a unified whole… well, let’s just say that society is going to have a lot of trouble building bridges, or hydroelectric dams, or wells, or raising crops, or putting out fires.
There are similar consequences for a society where “woman” (in her ancient, biological definition) is suppressed and replaced by “birthing person” and “people with periods,” and so on. Language is arbitrary, so we don’t need the word for “offspring-bearing sex” to be “woman.” We could reserve the word “female” for the biological (womanA) sense of womanhood while leaving “woman” to be all about gender performance (womanB). Maybe we make up a new word to talk about women in their biological essentials. Or maybe we eventually all chillax and just start using both versions of “woman” according to context clues, as I suggested earlier.
But we need a word for “offspring-bearing sex.” We can’t keep talking about “people with cervixes” and “birthing parents” as if those were entirely separate categories of people—not if we expect to continue having a comfortable relationship with reality. J.K. Rowling is a wordsmith, an actual genius at coining nouns (my undying admiration of the words “splinch,” “knut,” and “muggle” is a whole separate future blog post), so it’s unsurprising that she noticed when a necessary noun had gone missing. English-speakers will always identify this gap and will always fill it with a word—even if the local commissar gets mad at them for acknowledging the existence of females. It’s no different from when the commissar gets mad at you for calling the “potential enfloodening substance” “water” instead of “milk.”
We need WomanA.
A Definition in Want of a Grounding
We’re not the only ones who need WomanA. WomanB needs her, too.
Let’s take another look at WomanB, the “novel definition.” According to that definition, to be a woman is to have a woman’s “gender identity” (rather than a woman’s gestational ability). In turn, gender identity is defined as an “inner map” which corresponds to the maps of other people who have a woman’s gender identity. But, hold up, that looks circular: we’ve just defined female gender identity by referring to female gender identity. It’s like if you asked, “How do I join the lady club?” and I answered, “You have to think the same things the other members thought when they joined the lady club.” Your next question is liable to be, “So what are those things?!”
WomanB does give us an answer: according to Jenkins, in order to join the “female gender identity” club, you have to think the same way as the people who have been “targeted for subordination” based on “actual or imagined… evidence of a female role in biological reproduction.”
But look at that last term, the foundational term that keeps the rest of the definition from collapsing into circularity: “female role in biological reproduction.” In other words… WomanA. In this very advanced work of WomanB feminism by a well-regarded WomanB feminist, we still find the ancient definition doing important work.
Jenkins and trans-inclusive feminist theory seem to find this embarrassing, and bury it beneath several layers of theory, oppression, and subjectivity… but, in the final analysis, the definition of WomanB is incoherent without eventual reference to “the female role in biological reproduction.” This appears to be true across the board. I have not yet been able to find a coherent, non-circular definition of gender identity that avoids referring to pregnancy or the bodies that make pregnancy possible. (Jenkins’ version does a much better job of hiding it than most.) A reasonable conclusion to draw: WomanB, and the entire concept of “female gender identity,” cannot mean anything without eventually talking about vaginas and ovaries and pregnancies. Which means WomanB depends upon WomanA… and the reverse is not true.
I’m told that observing this is a form of “biological essentialism,” and that that’s very bad. However, I don’t see a strong reason to be so worried about the shadow of “biological essentialism.” Just because WomanB depends on WomanA doesn’t take anything away from WomanB’s independent value as a really useful and separate definition.
Take the word “magnetic.” It has (broadly) two meanings. MagneticA refers to a thing’s power to attract (or repel) other objects based on differential motion in electric charges—a physical, observable property of reality that is in no sense socially constructed. MagneticB refers to a person’s power to attract or influence other persons with her charisma—a reality that is very much socially constructed and socially mediated. MagneticB (like WomanB) makes no sense without referring back to MagneticA. So MagneticB depends on MagneticA for coherence, while MagneticA depends only on reality itself. But nobody walks around trying to find Zendaya with a compass, because that would be a stupid equivocation. MagneticB is a good and useful term that is related to, but not identical with, MagneticA.
We will know the gender wars are over when we are as comfortable with the dual, complementary meanings of WomanA and WomanB as we already are with MagneticA and MagneticB—when nobody insists any longer that one of them should be erased from the English language and the human imagination—when we can all openly talk and (yes) argue about how they relate (and how they don’t relate) without anyone in the conversation fearing for their safety, their livelihood, or their happiness.
Some Practical Implications (or: the Lack Thereof)
When you started reading a 13,000 word blog post on gender identity, you probably thought you were going to get something useful out of it—a devastating rebuttal to people who disagree with you about women’s sports, maybe. Psych! You just read 13,000 words about the English definitions of “woman,” in which I affirm both of them, and that’s all you’re getting!
Your face right now.
I can hear some of my conservative friends already. “James, are you alright in there? You just spent twenty-five pages refusing to commit to anything practical, on maybe the easiest issue in a generation. Blink twice if you’re being held hostage!” To which I say: hey, if I were a hostage, would I really go out of my way to support Undesirable Number One, J.K. Rowling?
Indeed, I think I have made some eminently practical commitments. If the current debate about trans justice is, at its core, a semantic argument, then getting a firm grasp on the language (and its underlying realities) is most of the ballgame. It seems to me that the most dramatic divisions, the ones that have made conversation impossible, melt away if all sides can agree on some core claims.
I suggest that a solid core to build out from has three “planks,” which I have tried to articulate in this piece: that biological females exist, that feminine gender performance exists, that transwomen exist, and (therefore) that the correct answer to “are transwomen women?” is “depends whether ‘woman’ means ‘female’, ‘feminine’, or something else in this context.”
Even if we all accept those premises, there is still plenty of room for practical disagreement. Indeed, someone who accepts these ideas could end up anywhere on a broad spectrum: you might conclude that (while not identical) sex and gender are closely, innately linked (as Prudence Allen thought and Abigail Favale thinks); you might conclude that connections between sex and gender are pretty arbitrary social constructs mostly fit for smashing (as self-id’d “YouTube SJW” Laci Green thinks and Anne Fausto-Sterling seems to); or you might land somewhere in a modest middle (as Leah Libresco Sargeant seems to have done, and as Scott Alexander certainly has).
Nothing about the claim, “Transwomen are femmewomen but not biowomen” implies specific answers to questions about women’s sports, bathrooms, book bannings, gendered dress codes, or the appropriate medical treatment for trans people. All those topics intersect with other questions, and this article hasn’t dealt with those intersections. All this article attempts to do is put everyone in the same ballpark at the start of those discussions, and perhaps dismiss some of the dysphemisms (“assigned female at birth”; “men invading women’s spaces”) that get in the way of having them. Specific topics will still need a great deal of further examination.
Let’s consider how this examination might work on just one battlefield, one that (to both sides) seems easy, like it should be a simple layup we can resolve in two sentences and a hearty handshake: the pronoun controversy.
Pronouns
The meanings of English-language pronouns are currently very unstable.
In the past, pronouns (when applied to people, rather than, say, boats) have referred exclusively to biological sex. “She” designates “biofemale”, “he” designates “biomale” or “impersonal default”, and “it” designates non-persons. This ready division of the entire human race into two-and-two-thirds categories (categories which define and bound many of our relationships) has many advantages and conveniences—or so the argument for this approach goes. It is unclear where the rainbow of intersex people are supposed to fit into this schematic, but the language didn’t really know about intersex people historically, and today’s hardline supporters of “biopronouns” tend to assign all intersex people to one of the two sexes anyway.
In recent times, in parallel with the rise of WomanB, pronouns have been troubled. Supporters of the “novel definition” contend that, rather than biological sex, pronouns ought to designate gender identity. Since gender-id is far more subjective than biosex, the only way to learn someone’s “correct” pronouns in this system is to ask that person. (That person will have presumably selected appropriate pronouns after a process of self-reflection.) This pronoun system is better than the old system (according to its supporters) in part because it marginalizes biosex, which they believe ought to be be marginalized, ignored, erased from the language, even denied outright. As we’ve seen, that’s a bad instinct.
However, there’s a good instinct, too: supporters believe this “affirming” pronoun usage is better at protecting our trans brothers and sisters. Many trans people feel a great deal of emotional pain related to their biological sex, which gives them a profound, sincere desire not to be reminded of their connection with it. If we don’t want to hurt trans people, the argument goes, we should use the pronouns that correspond to their chosen social roles rather than their unchosen birth anatomies (which some trans people have even surgically removed in order to relieve powerful feelings of dysphoria). Failure to do this (the argument goes) leads directly to trans suicide.
Moreover, supporters argue, if we can call school buildings (which have no genitals at all) “she,” surely we can politely call someone who has a penis but wears dresses “she”—especially if it is that person’s strong and clearly expressed preference.
Biopronoun supporters retort that we call schools alma mater because of a specific analogy to biological sex; schools nurture and birth us into the life of the mind and the adult world in much the same way our mothers birthed us out of the womb. It’s a literary device meant to enrich, but not contradict, reality.
Even after both sides acknowledge that sex and gender both exist and both matter, these arguments are both viable. I will not attempt to resolve them here. If I have done my job well, you cannot tell which one I favor. Indeed, earlier, I suggested a future middle ground, where pronouns are fluidly exchanged based on context cues, and you might refer to a biological female as “she” (biologically female pronoun), “him” (socially masculine pronoun), and “she” again (but this time it’s the socially feminine pronoun), all in the course of a single sentence. Yet this is hardly the only reasonable outcome. Even after acknowledging the existence of both sex and gender, both sides can (and do) make strong arguments on behalf of “affirming pronouns” or “biological pronouns.” In the long run, we may collectively decide to make pronouns exclusively refer to one of them.
An Interim Approach to Pronouns
It will take a long while for us to reach a new stable equilibrium on pronouns, and I do not know what that will finally look like. Knowing how funny language is, I suspect it will not look quite like anything anyone today expects or wants. As long as we end up with a shared meaning for pronouns that reflects something true about the world, the same way the word “water” reflects something true about a lake; as long as we retain a vocabulary that allows us to talk about different aspects of reality when needed; we will be okay.
Unfortunately, we don’t live in that world today. Today, pronouns are not just contested; they’re polarized.
If you use “he/him” pronouns on a transwoman, even after learning that this person is trans and identifies as “she/her,” you implicitly and unavoidably affirm the hardline ontological position that biological sex implies social role, and that this transwoman’s biological maleness is all that should or could matter to anyone. You imply that you think this person is a raving lunatic and that you don’t particularly care if this person lives or dies. You may not intend to communicate any of that, you may not believe most of that, you may not agree there is any logical connection whatsoever between the pronoun and that set of claims… but words don’t mean what we individually want them to mean; words bear the meaning that the culture as a whole has given them. And, currently, our culture has given “he/him” this meaning in this context. If you use these pronouns in this way, a typical English-speaking audience will (fairly or unfairly) construe you to mean all these things.
On the other hand, if one refers to a transwoman with “she/her” pronouns, then one implicitly affirms the ontologically extreme position that social role implies biological sex, that transwomen are truly female in every conceivable sense of the word, and that anyone who denies a transwoman this pronoun is a bigot. Again: whether you believe this or not, whether you want to communicate it or not, that is, right now, today, the culturally-assigned meaning of “she/her” in this context: a full-bodied affirmation that biological sex should be hidden, memory-holed, and un-named. If you use these pronouns in this way, a typical audience will (fairly or unfairly) construe you to mean all these things.
These are the only options, and they are both terrible. Polarization sucks, doesn’t it? (I feel the same way about voting these days.) How to muddle through while the language sorts this all out?
In general, I think that we are morally obligated to be honest in our speech. We should be tactful and kind, but we must never deliberately communicate falsehoods through our words—not even to be tactful or kind. There may be exceptions for certain games (like poker), or extreme circumstances where the Nazis are at your door asking whether you’re hiding any Jews in the house… but I don’t take even these narrow exceptions for granted. It seems to me that the overriding purpose of humankind is to discover the Truth (whatever it is) and to live by it once it is found; there is simply no other hope for human happiness, now or ever, besides Truth. To lie, by asserting something one knows to be formally false, is an unjustifiable breach of ethics.
I may be more absolutist about lying than most, but I think the vast majority of people agree that lying is bad. Certainly most of us agree with Orwell, who argued that consistent, ideological lies (especially lies that corrupt language) imperil all society; with Solzhenitzyn that those same lies corrode our own souls; and with Al Franken that we wish people would lie less.
That desire not to communicate untruths leaves us in a bit of a pickle with these polarized pronouns. Both approaches communicate some bad stuff: the first, a striking lack of charity and an ontological claim that is, at a minimum, overstated. The second is more comforting, but they don’t call them “affirming pronouns” for nothing—by using them, you affirm a slate of claims about sex and gender that are not only untrue, but, in our present moment (as we have seen), sometimes exclusive and even oppressive.
So I don’t use either. When I find out someone would like me to use affirming pronouns instead of biopronouns, I ordinarily stop using pronouns altogether. I must not be unkind, and I must not lie. As I see it, I can’t use pronouns without violating one of those moral rules, so I can’t use pronouns, the end. You’d be surprised how easy it is to do this—zero percent harder, sometimes easier, than actually changing the pronoun that comes to mind when you are talking with that person. I like to think the people I’m talking with don’t notice. But in case they do notice, I thank my friends for respecting me enough to accept my approach anyway. Perhaps they see that I am trying to be true to myself just as they (I know) are trying to be true to themselves. Perhaps they’re annoyed but just don’t think it’s worth fighting about. Regardless, I am grateful.
Sometimes, if we form a certain kind of friendship in a certain kind of group, they start to get a sense for what I think about culture and religion and politics, and then I become much more comfortable using affirming pronouns—because, by that point, they know that I don’t affirm the whole panoply of novel beliefs about gender. I can then use the pronouns without asserting anything false, and without misleading those around me. There are other exceptions to my rule as well, dictated by prudence and a well-formed conscience. For instance, if I’m an ER doctor trying to save the life of a teen transgirl who has just attempted suicide and is dying before my eyes, I think it’s prudent to just accept her pronouns and focus on saving her life.
Most people on both sides seem to think the pronoun problem is utterly simple, but I find pronouns very knotty indeed. This is my approach to them, hopefully a temporary approach until society reaches a less polarized settlement. I don’t think it’s the only possible approach that a reasonable person might adopt in good conscience, even if they agree with me on my three “planks.” I have friends who agree sex is real but who simply don’t agree that using affirming pronouns implicitly denies the reality of sex, so they use affirming pronouns. I have other friends who agree we shouldn’t be cruel, but who simply believe honesty requires them to clearly reject (and not merely evade) the ontological errors of the current moment, so they use biopronouns.
Meanwhile, for people who disagree with my three planks—as some reasonable people do—Katy bar the door, because we’re definitely not going to see eye-to-eye about pronoun use. That’s okay, as long as we all strain to our utmost to treat each other with respect and try (as best we can) to gently guide one another toward what we think is the Truth. Eventually, the English language will stabilize again, hopefully around a good pronoun system, probably not, but it will stabilize, and we just gotta get there.
Bring It Home, John
So that was four pages about pronouns, the “easy layup” topic. Imagine how long we would have needed before we could draw any useful conclusions about the WPATH guidelines for prescribing puberty blockers to children or gendered dress codes in the Aimee Stephens legal case. We’d have to introduce actual evidence, and then argue about how to interpret that evidence, and we’d be here until Christmas 2026. This stuff is complicated!
Again, those disagreements will happen even if we have all agreed to acknowledge the importance of both “gender” and “sex”, to stop trying to scrub them from the English language and/or daily life. That agreement seems very far off in our society at large.
But hopefully, you see in the pronoun test case that my argument (“biological sex and social gender performance both matter”) is just a foundation. And, hopefully, that test case also suggests how you might begin carefully working out for yourself the details of what all this means in the real world.
Words are tricky things. Nature is even trickier. People are trickiest of all, and this, more than anything, has led us into the blind alley of our current gender wars. We cannot abolish reality (much as some would like to), nor can we reduce it to a rigid, all-encompassing binary (much as some would like to). We can only do our best to come up with words that accurately describe reality, in all its uncomfortable complexity and its painful limitations. If we hope to succeed in that project, both the ancient, biological definition of “woman” and the novel, socially-constructed definition of “woman” will be necessary.
And then, when our arguments are settled, our policies are set, and our society is content with the settlement, we can, at long last, on that glorious day, get back to fighting about whether a chicken wrap is a sandwich.
(The answer is that sandwiches aren’t real. But that’s another blog post.)
Next Time on De Civ: I’m working on a piece about abortion and the 13th Amendment, but I think a nice sedate Worthy Links would be a good respite next week, don’t you? I also have a book review to finish for another publication.
UPDATE LOG:Unsurprisingly, there have been minor changes or corrections to this article since its publication. For complete transparency, here they are:
4 April 2022: A reader informs me that you can write Japanese the sound “mana” as まな in the hiragana system (although this is not a word), or, treating it as a foreign loanword, マナ in Katakana. I have made no changes to the body of the article, but thought it was an interesting note.
5 April 2022: I originally misspelled Caitlyn Jenner’s name as “Kaitlyn Jenner.” The error has been corrected in the body of the article.
A lot of anti-liberalism is born of confusion or misdirection about what liberalism is. Liberalism is good, actually!
NOTE: This post was originally published at my Substack. The footnote links go there instead of to the bottom of the page.
The English Corn Law Controversy of the 1810s-1840s was precisely the sort of difference of opinion that pre-liberal Europe tended to settle through peasant revolts and bloodshed. Liberalism ensured you got this picture instead.
This seems like a really bad time to get up and defend liberty. Its enemies are myriad.
On the Right, we find the smug, hand-wavy “post-liberalism” of Adrian Vermeule and Sohrab Ahmari—who would, without any doubt, be lined up against the wall and shot by their own revolution.1 This might be fine, except we won’t be around to see it, because the Catholic Integralist Revolution will have shot the rest of us long before getting around to eating its own.
On the Left, the face of post-liberalism can be found on every college campus, screaming invective at Ilya Shapiro or Nick Christiakis or Charles Murray, their faces contorted in a rictus of hate. They would lynch those men to death if they thought they could get away with it. I know this, and, if you’ve seen these mobs in action, you know it, too. The question that keeps me up sometimes: do they?
The post-liberty movement is where all the intellectual ferment is. Have you read David French lately? It makes you cringe. It’s not that his ideas are wrong. They’re worse: they’re unfashionable. Promoting or defending him is just so 2005. The fight has gone out of liberals. We lack all conviction, while our opponents are filled with passionate intensity.2 Many of the best despair, because liberalism seems fatally ill, and it may not matter that its replacements are worse. One hard push and liberalism could just fall over, like one of those statues the rioters pulled down last year. It’s not even hard to imagine what that push might look like.3
I can’t help thinking of something F. Murray Abraham’s character said in the greatest movie of all time, Star Trek Insurrection:
Look in the mirror, Admiral! The Federation is old! In the past twenty-four months, they have been challenged by every major power in the quadrant: the Borg, the Cardassians, the Dominion. They all smell the scent of death on the Federation.
In 1998, Star Trek was already worried that the “End of History” might turn into the end of liberalism. On that day, it was saved by the nobility and courage of one of the great liberal characters in the history of literature: Jean-Luc Picard. Today, ominously, that character no longer exists, and the people responsible don’t even seem to have destroyed him on purpose, as some kind of critique. The liberal humanist heart of Captain Picard is simply too alien for the writers to understand anymore. The death and un-life of Jean-Luc Picard is a symptom of the death and un-life of American liberalism.
But what actually is liberalism? Do we even understand the thing we’re giving up on?
Left-wing post-liberals seem to treat “liberalism” as a mere synonym of “centrist.” On the Right, Adrian Vermeule & Co. talk a big game about defeating liberty, but, when pressed, Vermeule offers a list of insipid, inchoate demands that—incidentally—are compatible with liberalism!
I suppose that isn’t surprising. Like “fascism,” “socialism,” “conservatism,” and even “integralism,” the label “liberalism” has been slapped on to so many concepts, by so many people, for so many years, that the label itself is now nearly devoid of definite content. By itself, the word expresses an affiliation, but not a program. The purpose of this post, then, is to describe the purpose and method of liberalism.
I admit that there are many self-identified liberals who would disagree with the understanding of “liberalism” I am about to sketch. Some of them write for The Atlantic today. Some of them were Founding Fathers! These people see liberalism as a kind of moralized libertarianism, where the goal of liberalism is the maximization of personal autonomy for all.4 “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe and of the mystery of human life,” wrote Justice Anthony Kennedy (the very worst of this breed), in a Supreme Court decision where Justice Kennedy exercised unilateral, profoundly illiberal power in order to forbid any state from criminalizing the vivisection of human babies.
This concept of “liberalism” is easily refuted. Locke is largely bunk, maximum personal autonomy is not an end in itself, exaltation of the will is of the Antichrist, and the libertarian political philosophy is not taken seriously by basically anyone. (Just look at their presidential election results!) Been there, done that, reviewed the book. Vermeule, Ahmari, and the rest do well to attack this form of “liberalism” (which should properly be called “libertarianism”), but they lunge into straw-man territory when they conflate this with the entire liberal project.
I don’t think I’m coming up with some bespoke, No-True-Scotsman version of “liberalism” when I say that. I think that my understanding of liberalism is shared by many people, including most of the writers at The Dispatch, several Founding Fathers, and the Catholic Church.5 We are the “right-liberals,” and the Vermeule Krew are not fans.
Scott Alexander identified the heart of the liberal project some years ago:
People talk about “liberalism” as if it’s just another word for capitalism, or libertarianism, or vague center-left-Democratic Clintonism. Liberalism is none of these things. Liberalism is a technology for preventing civil war. It was forged in the fires of Hell—the horrors of the endless seventeenth century religious wars. For a hundred years, Europe tore itself apart in some of the most brutal ways imaginable—until finally, from the burning wreckage, we drew forth this amazing piece of alien machinery. A machine that, when tuned just right, lets people live together peacefully without doing the “kill people for being Protestant” thing. Popular historical strategies for dealing with differences have included: brutally enforced conformity, brutally efficient genocide, and making sure to keep the alien machine tuned really really carefully.
That’s all liberalism is. It is not a policy program. You can’t ask what “a liberal” thinks about tax rates or porn bans or environmental stewardship, because liberals share no single vision of the common good. Liberalism is a framework for resolving important disagreements without mass bloodshed. That framework is what liberals share.
This is important, because there are many competing visions of the Common Good. Personally, I have a Catholic vision of the common good. I attempt to bring this vision into effect through the liberal process… because the liberal process, if followed, means I won’t ever have to get drawn and quartered because I got caught harboring a Jesuit in my home’s priest-hole.6 My fellow liberals have competing visions of the Common Good: Islamic, scientistic, hedonistic, libertarian, Black Nationalist, the works. They are all wrong, of course, and I am right. But they all think they’re right! We are liberals because we agree to use the Liberalism Machine for resolving our disagreement, instead of just sending police and spies and (finally) armies out to destroy one another.
The Liberalism Machine doesn’t always work the way we want. It’s a fallen world, and sometimes we enact bad or even unjust policies through the Liberalism Machine. The Liberalism Machine itself has no opinions. It’s a process for dealing with ideology, not an ideology of its own. The largest point in its favor is its unparalleled ability to quickly and bloodlessly self-correct when it goes wrong, which is often. This isn’t perfect, but it’s streets ahead of the alternative, where the side that wins is the one with the biggest army.
The anti-liberal Catholics, Muslims, hedonists, libertarians, Black Nationalists, and so on don’t differ from us liberals in how they understand the common good. They constantly claim that they have a purer vision than us liberal Catholics, libertarians, and so forth, but I want to ban porn as much as the next Catholic integralist. The liberal communist wants to abolish private property as much as the anti-liberal Leninist tankie. We want the same policies. The difference is that liberals want to enact their policies by convincing others in the agora so we win at the ballot box. The anti-liberals, in the final analysis, want to enact their policies at the point of their guns. Their idea of an agora is vestigial and tightly circumscribed. (And yes, illiberal libertarians are very much a part of that, no matter how loudly they bleat “liberalism.”)
The liberal framework, as I see it, consists of four pillars. The anti-liberals would abolish all four of these pillars wholesale.7 Think very carefully about what it would mean for you and your family if any one of these pillars no longer existed.
Millions of Americans hate you and hate your beliefs. Many of them live in your town. If these pillars went away, think about how they would exploit the opportunity.
The first pillar of liberalism is freedom of conscience. To the extent possible and practical within the common life of the community, citizens are never coerced to violate their own consciences. If you sincerely believe in the Aztec god Tlaloc, the State will prevent you from kidnapping children and sacrificing them to Tlaloc, but the State will not forcibly convert you to the current state religion.
In the United States, the present state religion is Secularism, a curious cult which teaches that claims about the supernatural, positive or negative, are categorically impossible. We are allowed to practice non-Secular faiths, including the One True Faith,8 solely because the United States is a liberal state. In a non-liberal state, we would be second-class citizens with limited rights at best, forcibly converted at worst.
Freedom of conscience is a pillar of liberalism because forcing a person to actively do or affirm what he or she sincerely believes to be evil will generally start with martyrdoms and end with mass violence. People will put up with quite a lot from their government, but they explode when you force them to profess an alien religion or directly participate in what they believe is evil. If you read the previous paragraph and didn’t feel your chest constrict at the idea of being reduced to a dhimmi (or worse), either you didn’t read it, or you’re incapable of imagining a future where your side doesn’t hold all the power. That chest-constricting terror is the stuff of which civil wars are made.
Many people (including the Catholic Church) teach that religious freedom is irrevocable and founded in each person’s individual creation by God Himself. It’s an “inalienable right” or whatever. Liberalism, which has no substantive beliefs of its own, has no opinion about that. Liberalism adopts freedom of conscience simply as a prudent measure for preventing mass violence.
Vermeule and Ahmari, put simply, want the Inquisition back. They will not rest until holding a Drag Queen Story Hour for kids, even on private property, results in prison time for all concerned. Not to be outdone, leftists have already, in some places, established their own Inquisitions, although they have typically rebranded them as “Human Rights Commissions.” Corporations are even farther ahead: no entity in America is more feared than the (increasingly aggressive) doctrinal enforcement arm of the local Star Chamber Human Resources department.
The second pillar of liberalism is diffusion of power. Liberalism recognizes that people are, without exception, pretty bad, and cannot be trusted to wield power justly or fairly. If we’re not actively evil, we’re stupid, arrogant, and error-prone. We’re overwhelmingly corruptible—and power inevitably makes us worse.
Of course, someone has to make decisions on behalf of the common good, even though that someone is very likely to be quite bad at making decisions on behalf of the common good. This presents a problem.
Many non-liberal models solve this problem by simply assuming a Virtuous Leader exists. They think that all we have to do is find the Virtuous Leader, give him absolute power, and help him protect his virtue from the temptations of power. We see this thinking in Catholic papal integralism, Curtis Yarvin’s neocorporatism, and Karl Marx’s communism. It never works for more than a generation, and rarely lasts even that long. Concentrating power in the papacy badly corrupted governance, but, worse, so thoroughly infected the Church that it provoked Protestantism, a spiritual calamity for the ages. (Johann Tetzel was the product of a broken system.) Meanwhile, communism tried giving power, via local soviets, to an idealized vision of “the People,” believing them to be a virtuous and invincible collective. It, uh… it did not work.
Liberalism accepts that no Virtuous Leader is available. (Christian liberals recognize that the only Virtuous Leader is Jesus Christ, and His kingdom is not of this world.) Since there can be no Virtuous Leader, liberalism instead diffuses power. It does not—this is important—liberalism does not concentrate power in the demos, the masses. The demos is a mob as stupid and corrupt as the worst of them. Communism idealized the mob and look where that got communism. Instead, liberalism spreads power widely across a variety of power centers… and then sets them against one another, like dogs. Liberalism trusts that, over the long term, across the broad spectrum, self-interest and competition between power centers will do a better job policing vice, corruption, and stupidity than a vain hope that centralized power will avoid vice, corruption, and stupidity of its own accord.
Thus, the brilliant crazy-quilt of governance under the highest expression of liberalism: the American Constitution. We have a semi-monarchy (the President), which is set against a semi-aristocracy (the judiciary, the Senate, the press), which is set against a semi-democracy (the House, the voters). This national government is set against diverse state governments, most of which are similarly divided against themselves, and further divided into cities, counties, mosquito control districts, and far more. Even the smallest units of government are undergirded, in turn, by a fabric of non-government power centers, from churches to political parties to bowling leagues to businesses to unions to families.9
It is not easy for an ordinance of reason purporting to advance the common good to run this gamut. Every proposal is scrutinized by a whole lot of eyeballs, and objections come in from every direction. Both the aristocracy and the commoners must agree to it. This crucible burns away a lot of terrible ideas, leaving only the hardiest ones in a position to be promulgated as law. The most dangerous ideas, the ones most likely to provoke civil war, don’t stand a chance when such broad consensus is required to make them law.10 Meanwhile, the wide diffusion of power provides a certain small measure of protection for the souls of those asked to wield it.
Is this diffusion of political power, this subsidiarity, a human right? Some say yes, some say no. Liberalism, which has no substantive views of its own, doesn’t care. It diffuses power simply as a defense against the much more dangerous alternative of concentrated power.
Of course, People Are Terrible—that’s the whole point here—so even this distributed, competitive form of decision-making often leads to bad decisions. Sometimes, the City Council is bad and the Mayor is bad and the voters are just bad, protected by bad judges and encouraged by a bad governor and a bad state legislature. (I’m from St. Paul, Minnesota!) But that’s just human fallenness. Post-liberalism offers no solution to this (how could it? only Christ can). Instead, post-liberalism seems determined to make the consequences of the Fall much worse, by concentrating power in fewer, more easily corruptible hands.
Vermeule, in particular, seems to want to concentrate power in the federal bureaucracy, which anyone can plainly see is the most morally corrupt institution in the firmament of government. This is precisely because the bureaucracy wields power, but is neither fully accountable to nor fully checked by any other power center. Under his model, the government would be a wholly owned subsidiary of Angband inside of two decades… and the post-liberals, having stripped the competition of the power to challenge the government, would leave us no option but violent revolution.
The third pillar of liberalism is freedom of discussion.11 Everyone should be allowed to openly discuss, debate, and draw conclusions about scientific, academic, political, artistic, and religious views, without fear of oppressive censorship or individual punishment for espousing an unpopular view.
Largely, this follows from the first two principles. Freedom to believe whatever you think best isn’t worth a whit if the only beliefs you’re allowed to hear are those approved by the State. Meanwhile, the power to control thought through censorship is just about the most powerful power there is—so it’s imperative that censorship powers be diffused as widely as conceivably possible.
But liberalism’s love of discussion is a bit more than that. I think it’s fair to say that liberals (me certainly included) believe in the power of the agora and its “marketplace of ideas.” We believe that the truth has nothing to fear from its enemies, because truth vanquishes all its foes. I believe in a God Who Is Truth, and that gives me serene confidence in the vindication of the Truth as long as we’re all playing on a fair, liberal battlefield.
If the truth loses to something like Sharia or scientism, then either (a) there is something deeply wrong with the champions of truth, and they need to take a long look in the mirror, or (b) there is something deeply wrong with the culture, in which case the truth is going to be targeted by censorship and needs to be protected from it. There is simply no circumstance where censorship actually helps the truth.
95% of the time, the mechanisms of censorship will be controlled by enemies of the truth, and they will use their power to straightforwardly attack the truth. How many times did we see that during the covid pandemic? Big Tech censors see-sawed from censoring pro-mask posts (March 2020) to censoring anti-mask posts (2020-21) to censoring posts that supported masking policies that had been dogmatic mere months ago (2022). Some of us even considered the lab-leak theory credible back when considering it at all was a bannable offense—not that you’d know it from our self-censored Facebooks! Always, they tried to use censorship in place of liberal discussion. Not only did their hamfisted attempts to defend the truth alienate vast swaths of the public, driving millions into the arms of sirens like QAnon, but they couldn’t even actually get the truth right! This is pretty much how censorship goes pretty much every time it’s attempted.
But what about the other 5%? Sometimes the right people do get control of the censor’s office. What then? Even when rightly ordered, all censorship manages to produce is brilliant, honest, and fearless dissidents; slow, stupid censors who often are there for a paycheck and don’t even themselves believe the official line; and a populace that naturally (obviously!) trusts the dissidents more. Censorship harms dissidents, but it never actually harms the censored ideas. Often, it encourages them!
Some people adopt freedom of discussion because the alternative is inhumane and oppressive. Something something “human rights,” you know the drill. Liberalism, which has no substantive beliefs of its own, adopts freedom of discussion simply because the alternative is stupid and self-defeating.
It is worth noting, in passing, that freedom of discussion does not encompass libel, slander, or pornography. These acts are categorically (and quite obviously) incapable of contributing to the scientific, academic, political, artistic, or religious development of our culture. No theory of liberalism has ever protected them. Even under current American law, pornography is protected solely by a (ridiculously, unfairly) heavy burden of proof on prosecutors combined with insufficient voter zeal, and libel/slander are in a similar boat. All three are technicallycrimes, even today.
The fourth and final pillar of liberalism is written laws. Before enforcing laws, liberalism writes them down.
With so many competing beliefs, ideas, conceptions of the good, and understandings of the human person, it is very difficult (often impossible) to fall back on universally shared understandings as the basis of enforceable law. Those understandings, therefore, have to be hashed out through the messy process of legislation under a system of diffused power. They must be fixed in an actual, agreed-upon textual form, with a meaning that is at least broadly understood by the general public, and enforced on the basis of that meaning.
Power centers are not free to unilaterally pluck other principles out of the miasma of competing visions of the good and start enforcing those principles without writing them down in the code of laws. That’s how we got the Dred Scott decision, Roe vs. Wade, and the Lochner Era. (It’s almost always judges who do this, because judges & lawyers generally combine arrogance and unaccountability under one roof.)
Liberalism repudiates that approach to law. You believe a “higher law” than the Constitution exists? Great. So did William Seward, and he was absolutely right! Now write that law down, get it ratified by the relevant power centers, and we’ll enforce it. Seward did just that. His interpretation of the “higher law” is now known as the Thirteenth Amendment.
Nothing in liberalism precludes a state governed by the principles of the classical natural law. Classical natural law’s pretty great, actually! Liberalism only precludes your sneaking your particular personal interpretation of the natural law in through the back door without telling anyone and then suddenly whipping it out in a judicial order that makes your personal interpretation universally enforced. Write it down, ratify it, and it’s binding. Judges are oath-bound to enforce your words as law after that—but not one instant before.
Post-liberals often deride this insistence on a written code of laws as “legal positivism.” It’s not legal positivism, but that doesn’t stop ’em. Legal positivism considers human law to be merely the will of the Sovereign, unconstrained by any wider cosmic moral framework. That is obviously stupid and nobody has ever really believed it.
However, liberalism, which has no substantive opinions of its own, has no opinion on cosmic moral frameworks, pro or con. Liberalism makes you write down the laws simply because the subjects expected to obey the laws must know the contents of the laws, which must be stable and predictable. In a liberal society with many competing ideas and many diffused power centers, the only way to do this is to write them down. Incidentally, St. Thomas Aquinas states that a law must be “promulgated” in order to have binding force, and he says this for precisely the same reasons liberalism says it.12
That’s it. That’s liberalism. That’s the alien technology that crashed into our politics in the 18th Century. It shaped our world so profoundly that it’s hard to imagine what the world looked like before it… or what it would look like today if we’d never discovered it. It seems likely to me that it would be darker, bloodier, and scarier. A full assessment of liberalism’s immense success (and, yes, significant failures) would be another 5,000 words at least, but I think I can sum it up like this: I’m a Catholic, in a Secularist nation, some of my best friends are Protestants, and none of us live in fear of execution or arrest or pogrom or forced family separation.
It’s a human system, so it isn’t perfect. Indeed, with so many anti-liberals on the march, from so many different camps, I have not been able to enjoy the full blessings of liberalism for some time. I must constantly check over my shoulder lest I be “cancelled.” I won’t be jailed, but I can easily lose my job. That’s hardly liberalism’s fault, though, when it’s the post-libs pushing it. Indeed, what else are the post-libs peddling? I’d trade 130,000 words of abstract theorizing for a single 5,000 word model Constitution, The Josias!
It is worth noting, again in passing, that liberalism does not demand disestablishment. There is nothing illiberal about a government explicitly embracing particular religious, moral, or metaphysical claims, and even promoting them. Freedom of conscience and discussion must be preserved, but the government simply having and promoting an official opinion does not limit conscience or discussion. Two centuries of American practice show that establishment of religion in various ways (school prayer, nativity scenes, Sunday “blue” laws) is perfectly compatible with liberalism. Several states maintained actual, established, taxpayer-funded state churches well after the ratification of the First Amendment. Justice Thomas has worked hard in his jurisprudence to show that the aggressive judicial application of the U.S. Constitution’s Establishment Clause to lower levels of government (states, cities, schools) is not justified by its own text or by the Incorporating Clause of the 14th Amendment. Personally, I would be delighted to see that particular brand of judicially-imposed tyranny rolled back in favor of our prior liberal regime.13
Liberals are not amoral, either. Sometimes you hear that liberalism requires us to consider policy apart from morality. Anyone who tries this line is selling something. All policy is moral, because all policy is based on some vision of the common good. Even (foolish) liberals who insist (foolishly) that “you can’t legislate morality” can’t explain what that sentence means without invoking the very moral values they claim to be taking off the table. The Liberalism Machine is amoral, sure… but the liberals who use it are all regular humans with a sense of right and wrong. That’s exactly as it’s supposed to be.
Liberals ended slavery with moral arguments. (Liberals with a different vision of the common good tried to save slavery with moral arguments.) Liberals abolished alcohol with moral arguments. (Liberals with a different vision of the common good brought it back.) Liberals today argue for tax hikes with moral arguments. (Other liberals argue for tax cuts with moral arguments.) Liberals made moral arguments for banning pornography, and only started losing in the 1960s, when other liberals (with help from the Supreme Court’s questionable force majeure) made moral arguments for legalizing it. Liberalism does not deny the role of morality in legislation, because it cannot.
Some people see this as a kind of hypocrisy. “Aha!” they say. “You claim to embrace amoral liberalism, yet here you are trying to sneak your morality in through the back door! Your liberalism is just illiberalism in disguise, so my honest illiberalism is no worse! Liberalism is a chimera!” But this (once more, with feeling) misunderstands what it means to be a liberal. All liberals have their own moral codes, their own visions of the common good. I believe that my vision alone is correct, but so does everybody else. We are liberals not because we share a single vision, but because we agree to a framework where our differences can be resolved openly, without bloodshed, in an environment where the content of our ideas matters more than the size of our armies.
That’s an idea worth fighting for. Today, because liberalism reigns, we can fight for it most effectively by writing and talking. Tomorrow, if post-liberalism ever succeeds at smashing the Liberalism Machine, we will have to fight for it on the battlefield.
If you’re flirting with post-liberalism,14 ask yourself: is that really what you want? Like all of us, you dream of a better world. But is it really the case that, if we kill a few thousand people, and muzzle hundreds of millions more, your dream will finally come true? What if you’re one of the dead? Or what if you lose? Or both? Is your dream so great that it would be worth it? Are you sure that your oppressive utopia is going to be the one oppressive utopia that finally works out?
The same goes for Curtis Yarvin, but he represents a different strain of Right Post-Liberalism, and he has two virtues: (1) he’s self-aware enough to know he’d be the first against the wall when the revolution comes, and (2) he’s very funny.
For example, if the Supreme Court upholds Roe v. Wade in this summer’s Dobbs v. Jackson decision, liberalism on the Right will become untenable. You can tell from Ahmari and Vermeule’s tweets that they not-even-all-that-secretly want the Supreme Court to uphold Roe, because that would vindicate them so thoroughly.
It’s true! If, after five decades of hard political and legal work within the framework of values-neutral liberalism, we can’t even get the Supreme Court to repudiate a precedent that flies (violently) in the face of values-neutral liberalism (and I’m talking real violence here: dismembered baby skulls, not Ilya Shapiro tweets), then we will know values-neutral liberalism is a lie and perhaps always was. Whatever its theoretical merits, liberalism will be a corpse. Liberals after 2022 will be like those pathetic communists after the fall of the Soviet Union who insisted that “Communism never failed! Real communism has never been tried!”
The really unsettling thing? I suspect that the Supreme Court overturning Roe could have a similarly radicalizing effect on left-liberals. I won’t critique their perspective here.
This mode of liberalism is what Patrick Deneen is referring to in the first chapter of Why Liberalism Failed, when he writes: “Liberalism is most fundamentally constituted by a pair of deeper anthropological assumptions that give liberal institutions a particular orientation and cast: (1) anthropological individualism and the voluntarist conception of choice, and (2) human separation from and opposition to nature.” It is also what Vermeule himself is talking about when he defines liberalism as “the doctrine that the central purpose of politics is to promote individual autonomy and secure its preconditions” in his odious Atlantic article, “Beyond Originalism.”
The Catholic Church has not only made its peace with this form of liberalism, but it actually appears to consider some form of this liberalism necessary. For example, some form of liberalism is clearly mandated by Dignitatis Humanae 2, which is as clear an infallible teaching as an ecumenical council has ever taught, and therefore is to be held by all Catholics with divine and catholic faith. Failure to accept liberalism, at least this far, is, for Catholics, heretical.
The marquee right-wing post-libs are maddeningly shy about this. Deneen avoids talking about the future, Ahmari focuses on particulars, and Vermeule evades through aggression, of the “I know you are but what am I?” variety. The Josias, however—openly endorsed by the other integralists—is perfectly frank about its plans to abolish freedom of discussion, freedom of conscience, and written laws (“ban positivism” lol). They’re tentatively okay with diffusion of power through democratic systems, but their first instinct is toward oligarchy. Even those who support democracy would require some supervisory entity to keep it from violating the state religion. We’ve seen what that looks like in modern integralist states. And we’ve even seen some post-libs defend the very worst consequences of a modern state that runs according to their ideals.
As for left-wing post-liberals, we know what their society looks like, too. Ever heard of a little something called the U.S.S.R.? It killed more people than Hitler, and that it killed quite a few of them by indifference rather than hatred is no point in its favor. The apotheosis of political correctness is the KGB, which invented it.
Replace that term with whatever you actually personally think the One True Faith is. Personally, I’m Catholic, but Protestants, Muslims, Jews, and Atheists all have just as much to gain from freedom of conscience in a Secularist state as I do.
I should note that there is one religion that Secularism is very happy to work alongside: Moralistic Therapeutic Deism, which makes only insipid supernatural claims that do not challenge practical Secularist policy in any way whatsoever.
It is worth noting in passing that liberalism’s need to prevent too much power from becoming concentrated in too few hands is an important reason for our antitrust laws. Spreading out public power among many different power centers does no good if private companies can unilaterally set policy and shape lives anyway. Big Tech’s private censorship power is a particularly vivid and urgent example of a concentration of private power so great that it threatens liberalism itself.
For this reason, it is obvious why the most destabilizing policies in America today all came into effect by bypassing the republican consensus process. They invariably come from oligarchs (judges) or elected monarchs (governors, the President, the Presidential bureaucracy) and are enacted unilaterally.
I deliberately avoid the term “freedom of expression” here. Not only does that phrase miss the point, but it lends itself too easily to a libertarian understanding of liberalism that I have expressly rejected.
There is a genuinely interesting discussion to be had about to what extent the “natural law” or “law of human nature” can be considered “automatically” promulgated, because it is imprinted on human nature. This is mostly not the conversation left-wing post-liberals (who deny human nature) and right-wing post-liberals (who want to use their particular interpretation of natural law as an excuse to steal home plate) are, in fact, interested in having.
So y’all at The Josias can put down your pens now and spare us both the lengthy quotations from Quanta Cura. I’m well aware of what QC teaches infallibly, and nothing in this article contradicts a letter of it.
And, hey, no judgment, we’ve all been there. I spent years flirting with post-liberalism, since back in the day when “integralism” was a crazy idea confined to a few WordPress blogs with Latin names. It’s where the exciting ideas are! But, sadly, the fact that they’re exciting doesn’t make them all good.
