Session 37, Frozen in Time: The Static Nature of Legal Texts and the Controversy Surrounding Dobbs


Legal texts*, such as the U.S. Constitution, serve as enduring reflections of the original intent of their ratifiers. As long as these texts remain in force—untouched by repeal or rescission—the understanding of their ratifiers continues to define rights and constrain the actions of individuals under the jurisdiction of such texts, even if those ratifiers are long deceased. Put differently, the meaning attributed to legal texts in the past remains fixed, and they cannot take on different meanings in the present. In this sense, legal texts are static or "dead."

Nevertheless, it remains paramount that "[t]he text [regardless of when it is ratified] is the law, and it is the text that must be observed." Consequently, any departure from the established meaning of the words encoded in legal texts lacks democratic warrant. Thus, a clear and unequivocal grant of rights to the public, such as the First Amendment's "right of the people peaceably to assemble," cannot be arbitrarily revoked. However, the inherent challenge arises when the text is not unequivocal, and constitutional questions are left unanswered. In such instances, the central inquiry becomes how a judge can faithfully interpret the text. I align with the idea that, in such cases, the text should be comprehended in light of three supplementary jurisprudential principles: originalism, traditionalism, and restraint. But in nearly all instances, a judge should refrain from resorting to identifying the purpose of the text and its associated consequences to arrive at the appropriate legal answer. In this presentation, we will utilize a recent Supreme Court decision to demonstrate how various jurisprudential tools can be properly employed to interpret the text of the Constitution.

In the case of Dobbs v. Jackson Women's Health Organization, the Supreme Court of the United States overturned a 50-year-old precedent, ruling that abortion is not a fundamental right under the federal Constitution. This decision swiftly sparked an unprecedented wave of harsh criticism against the High Court, both domestically and internationally. In the U.S., opponents of Dobbs depict it as "eliminating" a constitutional right, while on the global stage, it is portrayed as stripping away "a fundamental right for all women." Despite being veiled in distinct terminology and perhaps varying theories, the common ground among all opponents appears to be the assertion that abortion constitutes a right, as understood in legal discourse. But does it?

* As used herein and consistently throughout, the term "legal text" refers to the text of the law codified through an objectively democratic process. Consequently, this definition excludes religious texts and laws established in countries where the democratic process is non-existent or significantly undermined (e.g., Iran and North Korea).

Speaker’s Biography: 

Homayoon Rafatijo is an intellectual property litigation attorney affiliated with Spencer Fane LLP. His legal expertise is centered around various facets of intellectual property law, with a particular emphasis on topics such as artificial intelligence inventorship/authorship, the constitutional foundations of intellectual property rights, and estoppel doctrines. Over the years, Homayoon has engaged in fruitful collaborations with distinguished patent scholar Dennis Crouch, resulting in the co-authorship of several noteworthy law review articles. Their recent publication, titled “Resorbing Patent Law’s Kessler Cat into the General Law of Preclusion,” has gained academic recognition and earned them the Shook, Hardy & Bacon LLP Excellence in Research Award. In addition to his focus on intellectual property, Homayoon delves into broader legal subjects, contributing articles on sovereign immunity and the intersection of law and religion. Before entering the legal arena, Homayoon served as a chemistry professor and held the position of president at the Association of Intellectual Property and Entrepreneurship at the University of Missouri-Columbia. In his previous role as a chemist, Homayoon dedicated his research efforts to developing a statistical mechanical theory aimed at understanding the mechanisms of complex chemistry. His work also involved utilizing molecular dynamics simulations to characterize ignition phenomena.