Originalism, Abortion, and the Constitution’s Unfinished Commitments

 A discussion of two recent and related articles along with my understanding of John Bingham's 14th Amendment as an author of the "third" U.S. Constitution.

Balkin, Jack M., Abortion and Original Meaning, 24 Const. Comment. 291 (2007).
Available at: https://scholarship.law.umn.edu/concomm/432 

Koppelman, Andrew, "Why Jack Balkin is Disgusting" (2011). Faculty Working Papers. Paper 17.
http://scholarlycommons.law.northwestern.edu/facultyworkingpapers/17 

Magliocca, Gerard N. American Founding Son: John Bingham and the Invention of the Fourteenth Amendment. New York UP, 2013. 

For decades, constitutional debate over abortion has been framed as a stark choice between "Originalism" and a "Living Constitution". On the conventional account, originalism—faithful adherence to the Constitution’s meaning, especially what the Founder's meant, at the time of enactment—necessarily condemns abortion rights, or at least doesn't permit it, while Roe v. Wade stands as the paradigmatic example of ahistorical judicial invention. Jack Balkin’s "Abortion and Original Meaning" directly challenges that dichotomy, arguing that abortion rights are not a repudiation of originalism but can instead be justified by fidelity to the Constitution’s original meaning properly understood, at least in the Constitution  after the ratification of the 14th Amendment. Andrew Koppelman’s sharply titled response, "Why Jack Balkin Is Disgusting", accepts much of Balkin’s descriptive account while highlighting how radical—and unsettling—this form of originalism actually is .

Taken together, the two articles reveal that the abortion debate is not merely about reproductive rights. It is about whether originalism can survive contact with the Constitution’s abstract principles, social movements, and moral development—or whether it collapses into a far more dynamic, historically contingent theory of constitutional meaning than its proponents typically admit.

Balkin’s central thesis is to distinguish "original meaning" from "original expected application". The framers and ratifiers of the Fourteenth Amendment did not expect it to protect abortion rights. It wasn't an issue. But, Balkin argues, that expectation is not the law. What binds later generations is the "meaning" of the constitutional text—particularly its broad guarantees of liberty and equal citizenship—not the specific applications like abortion or contraception anticipated in 1868 .

The Fourteenth Amendment’s language—“liberty,” “due process,” and “equal protection”—was deliberately abstract. Its drafters chose principles capable of growth, delegating to future generations the task of applying them to new forms of injustice. Balkin argues that laws criminalizing abortion violate these principles because they enforce a form of **class legislation**, subordinating women by coercively assigning them the burdens of pregnancy and motherhood. Under this reading, abortion restrictions are not neutral health regulations but state-imposed hierarchies inconsistent with the Amendment’s commitment to equal citizenship .

Crucially, this argument does not rest on privacy alone. Instead, Balkin grounds abortion rights in the same antisubordination logic that underlies modern sex equality jurisprudence. The Constitution’s original meaning, he contends, condemns laws that use biological difference as a basis for civic inequality—even if the original generation failed to recognize women as full constitutional subjects.

Here is where Balkin most unsettles orthodox originalism. He insists that constitutional meaning is not mechanically extracted from historical sources but is **constructed over time** through interpretation, doctrine, and social struggle. Social movements do not merely pressure courts; they help determine which interpretations of constitutional principles become authoritative. The women’s movement of the twentieth century, like the civil rights movement before it, reshaped the nation’s understanding of what equal citizenship requires .

Andrew Koppelman embraces this descriptive claim—and finds it deeply disturbing. His essay’s provocation lies in its candor: Balkin’s theory is “disgusting” not because it is incoherent, but because it strips originalism of its promise of determinacy and constraint. If constitutional meaning evolves through persuasion, cultural change, and political power, then originalism can no longer function as a neutral bulwark against judicial discretion .

Koppelman argues that Balkin’s framework reveals what originalism has always tried to deny: constitutional interpretation is unavoidably shaped by values, historical contingency, and contested moral judgment. Once originalism is detached from original expected applications, it becomes capacious enough to justify not only abortion rights, but virtually every major constitutional development that conservatives often attribute to “living constitutionalism.”

Abortion, for Balkin, is a stress test for constitutional theory. If originalism cannot account for abortion rights without collapsing into exceptions, grudging stare decisis, or open moral reasoning, then it fails as a theory of fidelity. By contrast, Balkin’s “method of text and principle” treats abortion rights as a legitimate outgrowth of the Fourteenth Amendment’s original commitments—even while rejecting Roe’s specific doctrinal framework .

Koppelman underscores the irony: Balkin’s originalism succeeds precisely because it abandons the fantasy that constitutional meaning is fixed, determinate, and insulated from politics. What remains is a constitutional order in which principles endure, but their implementation is constantly renegotiated. That vision may horrify traditional originalists—but it may also be the most honest account of how American constitutionalism actually works .

Together, these articles suggest that the real scandal is not that originalism can support abortion rights, but that it can only do so by transforming itself. Balkin shows that fidelity to the Constitution does not require obedience to the dead hand of historical expectations. Koppelman shows that once this move is made, originalism loses its claim to ideological innocence.

Abortion thus becomes more than a constitutional controversy. It becomes a mirror, reflecting the deeper truth that the Constitution’s authority lies not in static historical answers, but in a continuing argument over the meaning of liberty and equality. Whether one finds that conclusion liberating or “disgusting” may say less about abortion than about what one believes constitutional law is—and should be.

I believe Balkin and Koppelman got it right in these two articles.  John Bingham is one of my heroes.  As an author of the 14thAmendment, I think Bingham would define those important words, liberty, due process, and equal protection in such a way as to precisely protect the right to abortion and contraception and privacy, i.e. to think of the 14th Amendment as a template of rights to protect future subjects of the Constitution in challenges to rights other than the original protections for former slaves.

For Bingham, liberty was not a narrow freedom from physical restraint, nor merely a procedural concept. It was a substantive status of free citizenship.

He consistently used liberty to mean: Freedom from arbitrary government power ; Enjoyment of fundamental civil rights; The condition of not being reduced to a caste or dependent status;  freedom as a civil condition, not merely freedom from imprisonment.

Bingham explicitly rejected the idea that liberty was limited to what states traditionally chose to protect. Liberty was something the Constitution itself guaranteed, and the Fourteenth Amendment was meant to force states to respect it.

Due process was meant to prevent unjust laws, not just unfair procedures. 

Bingham believed process alone was meaningless if the law itself was unjust. A law could be “procedurally regular” and still violate due process if it destroyed liberty.

Equal protection meant the abolition of caste legislation. It did NOT mean identical treatment, colorblindness, or mathematical equality. Equal protection required that: laws protecting persons and property apply equally to all classes; no group be placed in a subordinate legal status; states not single out groups for systematic legal disadvantage.  Clearly, women should be considered a group or a class and receive equal protection. Importantly, equal protection was understood as a positive obligation, states had to protect persons equally, failure to protect (e.g., tolerating racial violence) was itself unconstitutional. This is why early Fourteenth Amendment debates focused on violence, labor exploitation, and family integrity, not abstract formal equality.

It is equally important to say what Bingham and his colleagues did not mean:

• They did not think liberty was frozen to 1868 expectations

• They did not think equal protection applied only to race (though race was central)

• They did not believe states retained plenary power over “civil rights”

• They did not think constitutional rights were exhausted by procedure alone

They deliberately chose open-ended language because they knew future injustices would arise.

Laws that use biology or status to impose dependency raise simultaneous liberty, due process, and equal protection concerns—even if the framers did not anticipate the specific modern application.

That is why later scholars like Balkin and Koppelman argue (correctly in my view) that the Fourteenth Amendment’s original meaning can extend to issues like reproductive autonomy, marriage, bodily integrity, and family life.  That's not being a Living Constitutionalist but rather and Originalist and it's why so many originalists who believe otherwise got twisted in knots.