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On a recent episode of Amicus, Dahlia Lithwick spoke to Elizabeth Wydra, president of the Constitutional Accountability Center, about the big cases at the Supreme Court last week concerning abortion and gun rights. The Constitutional Accountability Center is dedicated to the project of using the original text, purpose, and history of the Constitution to achieve progressive outcomes. In a portion of their conversation, transcribed below, Wydra breaks down the history of the protections created in the 14th Amendment. The text has been edited and condensed for clarity.
Dahlia Lithwick: That brings us to Dobbs. And you’ve already mentioned one really essential thing that I wanted to probe—that chattel slavery and bodily autonomy, particularly in women, was very much a part of thinking about the crafting of the 14th Amendment. And to say nobody was thinking about women and their bodies and reproductive rights and families at the time really elides what you are describing as actual text and history. One of the things the Center’s been arguing, and I think this is also getting missed in the sort of whirlwind, is the extent to which it’s not just Roe v. Wade and Casey that’s on the hook. Can you talk briefly about what else is in the crosshairs if we start to do away with the idea that what was codified in Griswold, in Roe, in Casey, in Obergefell, if all that is just nonsense that can be swept away?
Elizabeth Wydra: You’re exactly right. The 14th Amendment uses broad words. And the first thing we have to do as people who are interpreting, and when judges apply the law, is look at the words because that’s what’s the law. They’re sweeping words of the 14th Amendment: equal protection of the law, due process. And when we look at what was meant by that exactly, we look at the concerns about the ways in which fundamental decision-making about the most important facets of your life were denied during chattel slavery. And the rights that are protected in that very broad concept of fundamental liberty include rights that we have seen protected by the Supreme Court, including the right to marry the person whom you love, protected in Obergefell in the marriage equality cases, the right to decide, again, whether, when, and if to have a child, protected in the abortion cases, but also in the cases that protect against state restrictions on contraception. And even, I would say, the right to marry a person of a different race that was protected by the Supreme Court in Loving.
I’m not just saying that because I’m a fearmongerer. I’m saying that because Jonathan Mitchell, who we’ve already talked about as one of the major proponents of S.B. 8, has suggested that in his own briefing. And people who are on that side of the S.B. 8 case are suggesting that some of these cases like the ones I just mentioned also could fall if there is a reimagining of the right in Roe. And one of the things that frustrates me when I talk about the Constitution to folks who aren’t constitutional lawyers is when they say, “Well, the word abortion, or the word health care, or Word X is not in the Constitution.”
That’s not how the Constitution works. It’s not a recipe with lists of ingredients. You talk about things like equality. And then, of course, what we do is we fight over what the meaning of equality is. So the fact that the word isn’t there is something different.
And to bridge the main topics of this term, one of the other things that was included in the kind of 14th Amendment drafters of the idea of this fundamental right to decide for yourself, the fundamental right to have your home and your family of your own choosing—and again, I think implicit in that is the right to choose not to have those things—was, ironically, some protection for the right to have a gun in your home for self-defense. The drafters of the 14th Amendment knew that Black Americans were not being protected by a lot of the white supremacist local authorities, particularly in the Southern states, but it wasn’t just limited to there. And so there was an idea that part of freedom and liberty was having the ability to protect yourself from, in that instance, racist terrorism.
It’s really ironic that a lot of this history is being talked about in the Supreme Court in some ways that are not particularly nuanced and not rooted in the whole story of the 14th Amendment. But it does get to some of the problems with looking to history, because that’s why it’s important to start with the words. When it comes to abortion rights, we look at what equal and what the ideas of liberty protected in the 14th Amendment mean.
And with the gun rights case and the Second Amendment cases, they don’t ever really talk about the words so much. There is this idea that “bear arms” means to carry them around, but you’ve got to be careful when you look at history because, as was demonstrated in the gun arguments, there are really good arguments on the side of those who look to history and find gun regulations. I think the Scalia idea that all history suggests this broad right to carry a gun is not true. Even Scalia recognized that regulations that cover sensitive places like schools and so forth can stand under even his broad reading of the Second Amendment.