The Constitutional Fidelity of Loving and Dobbs

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. As Justice James Wilson later explained, by the common law, “human life, from its commencement to its close, is protected,” and by that law, life begins well before birth, and as soon as “the infant is first able to stir in the womb.”

During colonial times, the earliest reliable evidence of this motion was the mother’s own sensation of it (the child’s “quickening”), which usually occurs in the second trimester of pregnancy. Therefore, the law treated post-quickening abortion far more seriously than pre-quickening abortion. We now know, of course, that the infant’s “stirrings” begin much sooner—not only with the heart and limb motion observable at six weeks, but with the microscopic motions that begin with conception; from the beginning, the embryo is not dormant but dynamic. Accordingly, as that scientific understanding advanced in the nineteenth century, all the states of the Union moved to extend protection to prenatal life into the early stages of pregnancy.

After Independence, our founders retained much of that old common law. At the same time, they cast off mere English “subjecthood” in favor of something at once older and freer: the Greco-Roman notion of citizenship. Membership had its privileges to be enjoyed throughout the republic, including, but not limited to, the right to travel, reside, file lawsuits, and acquire, hold, and convey property of all sorts.

Among the other rights of citizenship was the ancient right of intermarriage with other citizens—the so-called ius connubii. This ius allowed marriage between citizens across hereditary lines, for example, between plebian and patrician Romans. Similarly, in our distinct but still “united” states, citizenship plainly included the right to marry citizens of other states. As the jurist James Kent indicated, a multistate republic necessarily implied the right of interstate marriage among the citizens.

But did our common American citizenship imply not only interstate but also interracial marriage?

The answer depended largely on whether our republic was not only multistate but also multiracial. And that question was inextricably connected to the abomination of American slavery. Once grafted onto our country, this racially defined bondage greatly perverted our laws. Slavery introduced many racist innovations—including limits on intermarriage and the widespread redefinition of citizenship, whereby, notwithstanding the common law, the descendants of slaves could not be citizens—even if free and native to the soil. 

For this reason, antebellum bars to interracial marriage were almost entirely a function of this hostility to interracial citizenship. Proponents did not say that African Americans ought not to marry with white Americans, but rather that free black persons simply were not “Americans” to begin with. Accordingly, in the infamous Dred Scott decision, the Supreme Court declared that neither African slaves nor their descendants were citizens—and marshalled as evidence that such persons were often forbidden to intermarry with white citizens. If free blacks were fellow citizens with white Americans, the Court explained, they would have the right of intermarriage.

The Reconstruction Amendments were supposed to settle this whole matter. By expelling slavery and clearly establishing American citizenship on a nonracial basis, the people agreed to restore our older and better traditions of freedom and citizenship. Accordingly, during Reconstruction, the predominant opinion, especially among the Amendment’s most fervent supporters, was that our Constitution now clearly prohibited the states from making or enforcing laws hostile to interracial marriage. Republican officials across many states, including Mississippi, Texas, and Alabama, repealed or struck down such laws. Thus, by constitutional amendment, the common-law liberty of intermarriage was restored by the firmer establishment of our multiracial republic. Contrary to the claims made by the dissent in Dobbs, by 1872, interracial marriage was lawful in a supermajority of states, largely because of the prevailing opinion that bans on such marriage were incompatible with our multiracial republic.

Sadly, with the end of Reconstruction, an unconstitutional but de-facto apartheid regime developed. In Southern and many other states, African Americans were excluded from many rights of citizenship. Most notably, by the beginning of the twentieth century, a clear majority of the states once again banned interracial marriage, and many effectively prohibited blacks from voting. To that extent, the Fourteenth and Fifteenth Amendments were nullified. And most white Americans supported, or at least acquiesced in, this nullification. 

The American people, it seems, proved too racist for their own Constitution.

It was not until after World War II that Americans began earnestly to redress the injustice of Jim Crow by recovering their traditions and restoring their Constitution. As to marriage, the first success came in 1947, when a Catholic couple successfully challenged California’s law. In the following two decades, legislatures of Northern and Western states repealed their extant laws, so by 1965, such laws remained only in the former slave states. In Loving, the Court completed this work by striking down these remaining barriers. 

In that case, the Court said merely what Southern jurists during Reconstruction had acknowledged a century earlier: Our Constitution bars the states from making or enforcing laws against interracial marriage between Americans. As the Court explained, its conclusion was consistent with the original understanding of the Amendment’s “most avid supporters.”

Loving, then, was not revolution but restoration—a recovery of America’s oldest, broadest, and best tradition—and a work of constitutional fidelity. 

Likewise, 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.

David R. Upham is an associate professor of politics at the University of Dallas.

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