Written by David R. Upham |
Thursday, June 15, 2023
 In Dobbs, the Court once again has looked back to our tradition, our laws, our Constitution, and found therein a reserved right of the states to protect prenatal life. Dobbs is in full harmony with Loving. Like Loving, Dobbs is a recovery and vindication of our republic—a great victory for constitutional truth, justice, and the American way.

Our national Supreme Court has set aside the so-called “right” to abortion established in Roe v. Wade (1973) in favor of the states’ reserved authority to protect prenatal life. The Court’s decision proceeded from this syllogism:
(1) The Constitution’s Fourteenth Amendment protects only the rights enumerated in the Constitution or otherwise “deeply rooted” in our “Nation’s history and traditions”;
(2) the right to abortion is not such a right;
(3) therefore, contra Roe, the Amendment does not secure any right to abortion.
According to the dissent and many commentators, the Court’s reasoning threatens various unenumerated and innovative rights. Indeed, Justice Thomas, in his concurrence, specifically questioned the putative constitutional rights of contraception, nonmarital sexual activity, and same-sex “marriage.” These putative rights do, indeed, seem foreign to our Constitution and were only recently acknowledged by some of our laws.
The dissenters, however, mentioned the right of interracial marriage, first endorsed by the Supreme Court in Loving v. Virginia (1967). According to Justices Breyer, Sotomayor, and Kagan, the right of interracial marriage, like the abortion right, is not deeply rooted in our traditions. Indeed, laws banning such marriage once prevailed as widely as anti-abortion laws did; therefore, just as the new right of interracial marriage was vindicated in Loving, so was the new right of abortion six years later in Roe: “The Fourteenth Amendment’s ratifiers did not think it gave black and white people a right to marry each other. To the contrary, contemporaneous practice deemed that act quite as unprotected as abortion.” By this account, Loving, like Roe, was evolutionary, and anti-traditional.
But the Dobbs dissenters are wrong, egregiously so. Their opinion reflects a widespread and serious misunderstanding of our nation’s history.
The right of American citizens to intermarry, regardless of race, is, indeed, deeply rooted in our traditions of freedom and citizenship, and is, for this reason, consistent with the original intent and meaning of the Fourteenth Amendment. To be sure, bans on interracial marriage, of course, were once widespread in some parts of our county.
But such laws were never our American tradition. They were not original but innovative. It was not until 1691, nearly a century after Jamestown, that Virginia became the first colony to ban such marriages. Moreover, these laws were never universal. At Independence, only about half the states retained such laws—and nearly all were south of the Mason-Dixon line.
When our political ancestors first migrated to America, they brought with them the English common law—a general customary law recognized in England at the time. This original law recognized three principles.
First, that law secured extensive liberty, including a broad freedom to marry. The ease with which the common law allowed marriages gave rise to what we still call “common law marriage”: a marriage that happens simply by the unofficiated and even unwitnessed private agreement to live as husband and wife. The “consent of the parties is all that is required,” as James Kent later explained. Under this law, racial barriers to marriage were unknown.
Second, the law recognized broad birthright membership: All persons born under English jurisdiction were English subjects. Here too, the law recognized no racial discrimination.
Third, that law incorporated or reflected the complementary principles of legal “due process” and “equal protection,” both of which aimed to secure, to all persons, the rights of life, liberty, and property against lawless violence. Here too, these principles involved no racial discrimination whatsoever.
This protection extended to all living human beings—even before birth.
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