Last November, Georgia superior court judge Robert McBurney ruled that core portions of Georgia’s 2019 law barring abortion after the unborn child’s heartbeat is detectable “were plainly unconstitutional when drafted, voted upon, and enacted” and “are therefore void ab initio and of no effect.” As I explained at the time, it was McBurney’s ruling that should be determined to be void and of no effect. Among other flaws, McBurney did not grasp that the Court’s ruling in Dobbs meant that there never really was a federal constitutional right to abortion and that there were instead merely Court opinions mistakenly positing such a right. The Georgia supreme court promptly granted an emergency stay of McBurney’s ruling.
In its ruling today in State of Georgia v. Sistersong Women of Color Reproductive Justice Collective (no, the name of the appellee is not a cruel satire), the Georgia supreme court reversed McBurney by a 6-to-1 vote. Here is a crystalline passage from Justice Verda M. Colvin’s excellent majority opinion (many citations omitted):
[The lower court’s] incorrect conclusion rests on a faulty premise — that, in Dobbs, the United States Supreme Court changed not only its interpretation of the United States Constitution but also the meaning of the Constitution itself. This could be true, however, only if (1) the United States Supreme Court, as opposed to the United States Constitution, is the source of the Constitution’s meaning or (2) the United States Supreme Court has the power not only to interpret the Constitution but also to amend it. As explained below, both of these propositions conflict with well-established, foundational principles of law that are essential to our system of government.
First, although the United States Supreme Court has the ultimate authority to interpret the United States Constitution and to require other courts to apply its interpretation, the Court is not the source of the Constitution’s meaning. Rather, a written constitution itself has a meaning that is fixed upon ratification and cannot change absent a constitutional amendment. Thus, when a court engages in judicial review, the court does not supply the Constitution with a meaning the Constitution does not already have, but instead attempts to discern the meaning of the Constitution through interpretation so it can, among other things, “resolve conflicts between the Constitution itself and the statutory law.” This is true whether a court of last resort is interpreting constitutional text for the first time or instead revisiting its prior interpretation of that text. Indeed, judicial review is a legitimate, rather than an arbitrary, exercise of judicial power only because “a written constitution” has a meaning of its own “established” not by the courts but by “the people” who ratified it, which courts must then interpret” and “apply . . . to particular cases.” Marbury v. Madison, 5 U.S. 137, 176-177 (2 LE 60) (1803). It is therefore well established that the United States Supreme Court is not the source of the United States Constitution’s meaning.
Second, because “courts . . . are bound by” written constitutions — not the other way around — the United States Supreme Court can no more amend the United States Constitution than this Court can amend the Georgia Constitution. Only ratification of a constitutional amendment or a new constitution can change the meaning of the United States or Georgia Constitutions. Thus, the United States Supreme Court has no power to change the Constitution’s meaning through constitutional interpretation.
In sum, then, the United States Constitution, not the United States Supreme Court, is the source of the Constitution’s meaning; the United States Supreme Court has no power to amend the Constitution through interpretation; and the text of the United States Constitution has not been amended since the LIFE Act was enacted. Thus, the United States Constitution means today what it meant when the LIFE Act was enacted in 2019, even if the United States Supreme Court’s interpretation of the Constitution has changed.