Reconstructing the Reconstruction: Equality, Liberty, Method and Interpretation

Publication Title

Georgetown Law Journal

Document Type

Article

Publication Date

2026

Abstract

The U.S. Supreme Court’s reliance on “history and tradition” in Dobbs v. Jackson Women’s Health Organization reinvigorated long-standing debates about the Court’s use of what it claims is originalism. The Court’s selective view of which history matters manifests throughout the Dobbs opinion, dismissing Antebellum, Reconstruction, and Jim Crow histories altogether and engaging in opportunistic and ahistoric originalism. The methodology used in Dobbs serves as a troubling precedent and method for the potential dismantling of other civil liberties and civil rights. For this reason, we argue that reimagining judicial review is critically important to the future of constitutionalism and Supreme Court jurisprudence.

Specifically, this Article calls for two enhancements to judicial review. First, it argues for reassociating the Reconstruction with judicial review, including its legal and social precursors. We recognize the value in relating the fight against involuntary reproductive servitude to the Reconstruction and elevating this crucial political era in judicial review, such that the true meaning and associations connected to the Thirteenth, Fourteenth, and Fifteenth Amendments are imbued and embedded in judicial review. Second, the Article argues that full dismissal of certain histories disserves the call for justice, constitutionalism, and accountability on matters related to human rights, civil rights, and civil liberties. The compelling criticisms against originalism and the persuasive argument that it is no methodology at all are not incompatible with our view that history serves an important function in legal review. Thus, the Article concludes with a thought experiment involving a mixed-method review of constitutional disputes—one that turns to history while not excluding the learned position of a living constitution.

Recommended Citation

Michele Goodwin & Allison M. Whelan, Reconstructing the Reconstruction: Equality, Liberty, Method and Interpretation, 114 Geo. L.J. 1073 (2026).

Volume

114

Issue

5

First Page

1073

Last Page

1148

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