THE FIRST RULE OF TEXTUAL CONSTRUCTION IS THAT THERE IS A TEXT:

The opinion also identifies the right reading of the Constitution with its meaning as enacted. One might quibble that the Due Process Clause, in which the term "liberty" appears, was meant to trigger only procedural rights, and that any further inquiry into the content of these rights for substantive purposes is thereby superfluous. But Justice Alito is careful to note that much the same analysis of tradition would be mandated by the Fourteenth Amendment's grant of privileges or immunities to all citizens, which clearly offers a fount of substantive rights. Many scholars have argued that it protects liberties that were deeply rooted at least at the time of enactment and perhaps even rights that become deeply rooted thereafter. But because the right to abortion is not so rooted, that clause can provide no foundation for it.

The opinion's careful analysis of text therefore represents not only the overruling of Roe but also a sea change in the appropriate method of reasoning about the Constitution. What was notable about Roe was that it failed to locate the abortion right in the text of the Constitution or even in previous precedent. As law professor John Hart Ely said about Roe, "it is not constitutional law and gives almost no sense of an obligation to try to be." (Not surprisingly, Alito quotes Ely.) But Roe was also the culmination of decades of loose thinking about constitutional interpretation, as expressed in cases that ignored the original meaning of text and were driven by what the justices thought of as good policy. If the Dobbs decision follows this draft opinion, then its most important legacy will be the restoration of a more rigorous method of reasoning to the heart of constitutional law. And it represents a triumph for the conservative legal movement in its decades-long fight to restore the original meaning as the centerpiece of constitutional interpretation.

Alito's opinion does not imply that precedent will become irrelevant. After showing that the Constitution as originally enacted does not include a right to abortion, Alito analyzes various factors that the Court has canvassed in deciding whether to overrule Roe. But even here, he emphasizes that the quality of the reasoning of the precedent up for overruling remains key. And that factor will push the Court to consider the precedent's connection to a plausible interpretation of the Constitution's meaning.

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