COLUMN: The right to abortion is not soup, or cereal


Trent Jonas

Trent Jonas is a graduate student studying English and can be reached at 217-581-2812.

Trent Jonas, Columnist

A recent DEN column appeared to say that inferring a right to abortion under the United States Constitution is akin to conflating soup with cereal.

In so doing, the author seemed to imply—without using the phrase—that constitutional originalism is the correct way in which to interpret our nation’s foundational document. The column ended with the following paragraph:

Living constitutionalism does have practical advantages–but practical advantages are not sufficient grounds for determining how we should interpret the text. Instead, practical advantages simply show that we can incorrectly interpret the constitution in ways that achieve (often important) social goals.

I, for one, would like to register my disagreement.

The (now, apparently, former) federal right to abortion did not just appear out of anywhere. It evolved from the landmark case of Griswold v. Connecticut, in which the Supreme Court recognized that a right to privacy lies in the “penumbra” (great word, right?) of the Constitution’s Fourteenth Amendment.

The line of cases that derived from Griswold has protected everything from the right to marry—between genders and races—to the right to use contraception. Originalists like Justices Alito and, head-scratchingly, Thomas would prefer that such rights were not protected by the Constitution (a document under which, originally, Thomas may have been three-fifths of a judge).

If courts did not view the Constitution as a living document, individuals would be subject to all sorts of government intrusions. For example, the Fourth Amendment only protects against warrantless searches of “persons, houses, papers, and effects.”

Your cell phone does not fall under any of these categories. Prior to 2014, in many states, a police officer could legally take your phone and look through its contents without a warrant. Fortunately, the Supreme Court handed down Riley v. California, which held that the Fourth Amendment protects the contents of cell phones.

Similarly, in 2018 the Court decided Carpenter v. United States, in which they held that law enforcement needs a warrant before they can use your cell phone’s location data to track you. I’m pretty sure the founders didn’t consider that when they drafted the Fourth Amendment. (I wonder if being tracked by cops is something originalists particularly enjoy.)

Another inherent problem with originalism is pinning down just whose “original” intent we’re talking about.

Those from the 1780s who owned slaves, counted a male slave as three-fifths of a man (it’s right there in Article I, section 2), and denied the right to vote to women? Or maybe those from the 1860s, who ratified the Twelfth, Thirteenth, and Fourteenth Amendments, and outlawed slavery? Or those from 1971 who passed the Twenty-Sixth Amendment giving 18- year-olds the right to vote? What’s original?

The fact that the Constitution has been amended 26 times—ten times by the founders, themselves!—should be proof enough that it’s a living document and shouldn’t subject to the blindered views of originalism. That the First Amendment covers our right to put these pixels out on the World Wide Web—which is not a “press”—is further testament to the limitations of originalism.

Any pro-originalists who would like to respond to this column may do so by town crier or by posting a quilled vellum on the nearest sycamore tree.

Trent Jonas is an English graduate student. He can be reached at [email protected] or 217-581-2812.