While the Supreme Court has recognized many constitutional rights that are not specifically enumerated in the Constitution, Justice Samuel Alito observes in his draft opinion overturning Roe v. Wade, the abortion right is unlike these other rights in that it raises a "critical moral question": How can a mother have a right to abortion if this means killing what some people call "potential life," and others call an "unborn human being"? (See pp. 32-33.) If this means killing innocent human life, why isn't that murder? Or should we say that this is not murder because terminating potential human life is not the same as killing a human person?
Alito says that in his role as a judge interpreting the Constitution, he cannot answer this moral question, because he must restrict himself to legal questions. But, in fact, he cannot interpret the constitutional legality of the abortion right without answering this moral question. If he were to answer the question by saying that abortion is murder, because the unborn life in a mother is a human person, then he would have to conclude that since the Constitution explicitly protects the right to life of all persons, then abortion must be unconstitutional, and state governments may not legalize abortion. But since Alito decides that state legislatures must be free to resolve this issue for themselves, and so they can choose to legalize abortion, that must mean that Alito has decided that abortion is not murder, because the unborn life in a mother is not a human person.
Alito says: "we thus return the power to weigh those arguments to the people and their elected representatives" (34-35). By my count, Alito uses this language of returning authority "to the people and their elected representatives" seven times (31, 35, 40, 41, 61, 65, 67).
In referring to the people's "elected representatives," he is clearly referring to state legislators. But why shouldn't the nationally elected representatives in the U.S. Congress decide this issue? And why shouldn't the Congress have the power to enact legislation to overturn Alito's overturning of Roe v. Wade by declaring that the original meaning of the 14th Amendment secures a constitutional right to abortion for all women in the United States, and therefore any state law denying this right to abortion is unconstitutional?
Now, of course, the Congress could also decide to enact legislation to support Alito's decision that the 14th Amendment does not secure a right to abortion, and so state legislatures are free to either protect or deny that right. But in either case, the Congress would be the ultimate interpreter of the 14th Amendment.
That this is the case is made clear by Section 5 of the 14th Amendment: "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." (Remarkably, this language appears for the first time in the Constitution in the three post-Civil War Amendments--13, 14, and 15. Later, it appeared in the 19th, 23rd, 24th, and 26th amendments.)
This is a clear statement of constitutional text that empowers Congress to interpret the 14th Amendment and to decide whether the original meaning of that amendment secures the right to abortion as a constitutional right, as one of those unenumerated natural rights that are "retained by the people" (9th Amendment).
Section 5 of the 14th Amendment is a constitutional text that supports what Jack Balkin calls "living originalism." On the one hand, if Congress asserts a constitutional right to abortion, this will have no legitimacy if the Congress cannot persuade the American people that this assertion is grounded in the original meaning of the text and principles in sections 1-4 of the 14th Amendment. On the other hand, the Congress's interpretation of the original meaning of that text and principles is not bound by the original intent and original expected application of those who wrote and ratified the 14th Amendment in 1868.
The "living Constitution" and "originalism" are two sides of the same coin.
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