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Consent & Causation

In criminal law, the doctrines surrounding sexual consent and proximate causation are both thought to reflect conclusions about individual autonomy. But these doctrines diverge in striking ways. In rape law, the choice to consent to sex is deemed sufficiently autonomous even when made in response to threats or coercion, when induced by fraudulent misrepresentations, or when produced by mental impairment. By contrast, the doctrine of proximate causation holds that a choice made in response to force, coercion, fraud, or mental impairment is insufficiently autonomous, and therefore an individual is not morally responsible for any resulting consequences. This divergence invites a crucial question: Does the law of proximate causation capture something important about individual autonomy that has been overlooked in the law of sexual consent? After all, sexual consent frequently plays a causal role in normatively desirable sexual encounters. Yet the structure of U.S. rape law elides any inquiry into causation. Might rape law be improved—might it better protect individual autonomy—by demanding that sexual consent be a proximate cause of sex itself?

This Article is the first to raise this question and undertake this inquiry. By juxtaposing consent and causation in criminal jurisprudence, it reveals an inconsistency in the understandings of autonomy that motivate those doctrines, shedding new light on longstanding criticisms of rape law. This Article then makes a preliminary case for reforming rape law by recasting sexual consent as a matter of proximate causation. It offers three grounds for doing so: First, philosophical accounts of sexual autonomy require an individual to be able to control the character and circumstances of sexual contact, a requirement that is only vindicated when consent causally contributes to sexual activity. Second, the best understanding of consent’s exonerating role in sex is that consent alters another person’s reasons for acting, a function that can only occur when consent causally motivates sexual behavior. Lastly, the leading accounts of when sex is normatively desirable rest on a conception of mutuality—that is, responsiveness to the other person’s active consent. In short, this Article advances the novel claim that sexual activity is normatively desirable when it occurs because it is consented to, not merely whenever it is consented to.

The Article concludes by considering how rape laws may be reformed to leverage the normative insights just uncovered. It first examines the recent revisions to the sexual assault provisions of the Model Penal Code adopted by the American Law Institute in 2022. Those revisions, for the first time, included both requirements of causation and requirements of nonconsent. But the Model Penal Code’s revisions hew too closely to traditional rape laws, ultimately failing to capture the broad spectrum of normatively undesirable sex that warrants criminalization. The Article instead reconfigures rape as primarily a result crime, prohibiting specific wrongful means of causing sexual intercourse and exonerating sex when consent is the proximate cause. A rape law structured around the causes of sexual intercourse may best capture our normative intuitions about why and when consent matters.

Introduction

Consent is the primary legal mechanism used by the criminal law—rape law, in particular—to safeguard sexual autonomy.1 1.See, e.g., Stuart P. Green, Criminalizing Sex: A Unified Liberal Theory 25 (2020); see also Alan Wertheimer, Consent to Sexual Relations 31 (2003) (“In effect, autonomy refers to the value that is to be protected, whereas consent refers to the means for protecting and promoting that value: we protect a person’s autonomy by prohibiting actions to which she does not consent and empowering her to engage in actions to which she does consent.” (emphasis omitted)); Luis E. Chiesa, Solving the Riddle of Rape-by-Deception, 35 Yale L. & Pol’y Rev. 407, 419 (2017) (“[C]onsent is the tool that law most commonly deploys in order to operationalize conceptions of freedom and autonomy.”); Patricia J. Falk, Rape by Drugs: A Statutory Overview and Proposals for Reform, 44 Ariz. L. Rev. 131, 187 (2002) (“As many commentators have observed, the central value protected by sexual offense provisions is sexual autonomy or sexual integrity, the violation of which represents a unique, not readily comparable, type of harm to the victim.” (footnotes omitted)).Show More However, American rape law has long been criticized for advancing a conception of consent that survives common means of subverting autonomy.2 2.See, e.g., Patricia J. Falk, Rape by Fraud and Rape by Coercion, 64 Brook. L. Rev. 39, 162–68, 173–77 (1998) (detailing scholarly criticisms of rape law’s treatment of sexual fraud and sexual coercion); see also Stephen J. Schulhofer, Unwanted Sex: The Culture of Intimidation and the Failure of Law 114–36 (1998) (critiquing rape law’s treatment of coercive situations as consensual).Show More Judges and juries have found valid consent to sexual intercourse in the face of deadly threats,3 3.See infra Subsection I.C.1.Show More psychological coercion,4 4.See infra Subsection I.C.1.Show More material fraud,5 5.See infra Subsection I.C.2.Show More intoxication,6 6.Coley v. State, 616 So. 2d 1017, 1023 (Fla. Dist. Ct. App. 1993) (“The prevailing view is that voluntary consumption of drugs or alcohol does not, without more, render consent involuntary.”); State v. Sherrill, No. 71,253, 1995 WL 18253106, at *3–4 (Kan. Ct. App. June 9, 1995) (finding insufficient evidence that the complainant could not consent despite her testimony that “she had consumed a considerable amount of alcoholic liquor”). See generally infra Subsection I.C.3.Show More and mental impairment.7 7.See infra Subsection I.C.3.Show More As Catharine MacKinnon has documented, “Consent as a legal standard in the law of sexual assault commonly exonerates sexual interactions that are one-sided, nonmutual, unwanted, nonvoluntary, nonreciprocal, constrained, compelled, and coerced.”8 8.Catharine A. MacKinnon, Rape Redefined, 10 Harv. L. & Pol’y Rev. 431, 443 (2016).Show More

In another corner of criminal law, threats, coercion, fraud, intoxication, and impairment are thought to so significantly undermine autonomy that a person affected by them is deemed irresponsible—both morally and legally—for resulting consequences.9 9.See infra Section II.B.Show More This is the law of proximate causation. Under a causation analysis, the criminal law rigorously interrogates whether a person’s actions are sufficiently autonomous to render that person blameworthy for consequences that follow.10 10.See, e.g., Eric A. Johnson, Trust and the Limits of Trust: Rethinking the Doctrine of Novus Actus Interveniens, 2025 U. Ill. L. Rev. 743, 751–55; Guyora Binder & Luis Chiesa, The Puzzle of Inciting Suicide, 56 Am. Crim. L. Rev. 65, 99 (2019).Show More When a person’s actions are not autonomous, it is often because their autonomy was infringed by some earlier-in-time blameworthy conduct by another, who now carries moral and legal responsibility.11 11.See Michael S. Moore, The Metaphysics of Causal Intervention, 88 Calif. L. Rev. 827, 836 (2000) (“[I]f the defendant coercively supplies the motive for the intervenor’s behavior, then that behavior does not break the causal chain between defendant’s action and the harm.”).Show More

Juxtaposing consent and causation thus reveals a tension in the criminal law’s depictions of individual autonomy—a tension that goes to the heart of what it means to bear moral and legal responsibility for sex. When the law asks whether someone is responsible for an act of sexual intercourse, it is best understood as asking a question about causation. After all, both legal and moral responsibility for an event typically follow from an inquiry into who caused the event to occur.12 12.See Binder & Chiesa, supra note 10, at 70 (explaining that causation in criminal law is “little more than a normative attribution of responsibility for a result”).Show More But when the law concludes that someone consented to an act of sexual intercourse, it also seemingly asserts something about that individual’s moral and legal responsibility. An individual who consents to sex is expected to bear the consequences of that act of consent, for better or worse, without complaint.13 13.See, e.g., Heidi M. Hurd, The Moral Magic of Consent, 2 Legal Theory 121, 123 (1996) (“[C]onsent defeats any rights on the part of others (including the person consenting) that the actor not do the wrong act.”).Show More Moreover, because consent operates to absolve other parties from legal responsibility for a sexual act, consent seemingly intervenes in the attribution of responsibility.14 14.See id. at 124 (“Whether it functions as a ‘moral transformative’ or as a ‘stained permission,’ consent derives its normative power from the fact that it alters the obligations and permissions that collectively determine the rightness of others’ actions.”).Show More

These conclusions about moral and legal responsibility for sex are unproblematic when sex goes right. In paradigmatic consensual sexual interactions, sex presumptively happens because there was a prior act of consent. Thus, the law’s conclusions about causal responsibility and its conclusions about consensual responsibility should align.

But when sex goes wrong—when consent is tainted by external factors, including force, coercion, fraud, intoxication, and mental impairment—the criminal law’s causal conclusions diverge sharply from its conclusions about the validity of sexual consent. Consider the situation where sexual consent is fraudulently induced, such as when a doctor tells a patient that sexual intercourse is a necessary component of medical treatment.15 15.See, e.g., Boro v. Superior Ct., 210 Cal. Rptr. 122, 123 (Ct. App. 1985) (defendant posed as a doctor and convinced the victim that she needed to have sex with an anonymous donor in order to treat “a dangerous, highly infectious and perhaps fatal disease”).Show More The criminal law’s causation doctrine would hold that the doctor, rather than the patient, should bear moral and legal responsibility for causing the sex.16 16.See infra Subsection II.C.2.Show More But the criminal law’s consent doctrine would hold that the consent is valid and enforceable,17 17.See infra Subsection I.C.2.Show More rendering the sex noncriminal, and leaving the victim to bear the weight of any experienced harm.

Viewing sexual consent as one act in a chain of actions that results in sexual intercourse reveals a limitation in the structure of U.S. rape law. The typical rape statute in the United States makes sexual nonconsent an attendant circumstance—an extraneous fact that is not causally connected to the essential conduct with which the defendant stands accused.18 18.The traditional common law definition of rape was “carnal knowledge of a woman forcibly and against her will.” 4 William Blackstone, Commentaries *210. In this formulation, still relevant in roughly half of U.S. states, MacKinnon, supra note 8, at 437 & n.26, the element that the intercourse be nonconsensual (or “against her will”) is an attendant circumstance, see, e.g., Susan Estrich, Rape, 95 Yale L.J. 1087, 1121 n.101 (1986). Attendant circumstances “refer to the objective situation that the law requires to exist, in addition to the defendant’s act or any results that the act may cause.” Model Penal Code § 5.01 cmt. at 301 n.9 (A.L.I., Official Draft and Revised Comments 1985).Show More Because of this structural choice, sexual consent renders sexual intercourse noncriminal whenever it is present. External factors that bear on moral responsibility—force, coercion, fraud, and impairment among them—have little doctrinal significance in defining a particular sexual interaction as rape because causation is left out of the picture.19 19.See infra Section I.C.Show More

This revelation invites two further questions, one normative and one doctrinal. Normatively, ought we demand that consent play a causal role in sexual interactions if it is to exonerate them? Stated differently, is the mere presence of legally valid consent morally transformative? Or is sex normatively desirable only when legally valid consent causes subsequent sexual acts? Assigning a causal role to sexual consent seemingly ensures that criminality maps onto our ordinary intuitions about who bears responsibility for a result. If rape law—like criminal law more generally—seeks to track moral responsibility (hence blameworthiness),20 20.Although there are of course varied justifications for the criminal law, many leading theorists agree that blameworthiness is or ought to be the centerpiece of our criminal system. See, e.g., Douglas Husak, “Broad” Culpability and the Retributivist Dream, 9 Ohio St. J. Crim. L. 449, 449 (2012); Michael Moore, Placing Blame: A General Theory of the Criminal Law 153–54 (1997); Larry Alexander & Kimberly Kessler Ferzan with Stephen Morse, Crime and Culpability: A Theory of Criminal Law 66–67 (2009).Show More there are at least provisional arguments that causation should be required.21 21.See infra Section III.A.Show More

Doctrinally, contrasting consent and causation invites inquiry into how to structure rape statutes to ensure that consent is causally efficacious. I have been down this road once before, postulating that a rape law modeled on human trafficking laws might profitably incorporate a causation requirement.22 22.Ben A. McJunkin, Rape as Indignity, 109 Corn. L. Rev. 385, 447 (2024).Show More The recent reforms to the Model Penal Code also hint in this direction. Under the model language adopted at the 2022 annual meeting, at least some sexual assaults would require that sexual intercourse be caused by the defendant’s use of force, deception, or extortion (and therefore not caused by the complainant’s consent).23 23.See Model Penal Code §§ 213.1–213.2, 213.4–213.5 (A.L.I., Tentative Draft No. 6, 2022).Show More However, the model language ultimately continues the trend of centering the presence and validity of consent, rather than its causal role in the encounter. Taking consent’s causal role in sexual relations seriously would thus require revisions to rape law that go beyond the new Model Penal Code.

This Article proceeds in three Parts. Part I examines the current role of consent in U.S. rape law and its ostensible commitment to protecting individual sexual autonomy. This Part catalogues how consent has been found to be present and valid even in the face of threats, coercion, fraud, or mental impairment. Part II examines the doctrines of proximate and intervening causation, exploring these doctrines’ philosophical grounding in individual autonomy. In contrast to Part I, this Part catalogues how threats, coercion, fraud, and mental impairment interrupt causation precisely because they so impair autonomy as to absolve individuals of moral and legal responsibility. In light of this juxtaposition, Part III constructs a normative argument that a proper understanding of autonomy requires that consent play a causal role in sexual intercourse if intercourse is to be normatively desirable. It then explores the consequences of this argument for rape law reformers: rape should not be understood as sex in the absence of consent, but rather as causing sex through specified, prohibited means other than consent, allowing sexual consent’s doctrinal role to track its normative one.

  1.  See, e.g., Stuart P. Green, Criminalizing Sex: A Unified Liberal Theory 25 (2020); see also Alan Wertheimer, Consent to Sexual Relations 31 (2003) (“In effect, autonomy refers to the value that is to be protected, whereas consent refers to the means for protecting and promoting that value: we protect a person’s autonomy by prohibiting actions to which she does not consent and empowering her to engage in actions to which she does consent.” (emphasis omitted)); Luis E. Chiesa, Solving the Riddle of Rape-by-Deception, 35 Yale L. & Pol’y Rev. 407, 419 (2017) (“[C]onsent is the tool that law most commonly deploys in order to operationalize conceptions of freedom and autonomy.”); Patricia J. Falk, Rape by Drugs: A Statutory Overview and Proposals for Reform, 44 Ariz. L. Rev. 131, 187 (2002) (“As many commentators have observed, the central value protected by sexual offense provisions is sexual autonomy or sexual integrity, the violation of which represents a unique, not readily comparable, type of harm to the victim.” (footnotes omitted)). ↑
  2.  See, e.g., Patricia J. Falk, Rape by Fraud and Rape by Coercion, 64 Brook. L. Rev. 39, 162–68, 173–77 (1998) (detailing scholarly criticisms of rape law’s treatment of sexual fraud and sexual coercion); see also Stephen J. Schulhofer, Unwanted Sex: The Culture of Intimidation and the Failure of Law 114–36 (1998) (critiquing rape law’s treatment of coercive situations as consensual). ↑
  3.  See infra Subsection I.C.1. ↑
  4.  See infra Subsection I.C.1. ↑
  5.  See infra Subsection I.C.2. ↑
  6.  Coley v. State, 616 So. 2d 1017, 1023 (Fla. Dist. Ct. App. 1993) (“The prevailing view is that voluntary consumption of drugs or alcohol does not, without more, render consent involuntary.”); State v. Sherrill, No. 71,253, 1995 WL 18253106, at *3–4 (Kan. Ct. App. June 9, 1995) (finding insufficient evidence that the complainant could not consent despite her testimony that “she had consumed a considerable amount of alcoholic liquor”). See generally infra Subsection I.C.3. ↑
  7.  See infra Subsection I.C.3. ↑
  8.  Catharine A. MacKinnon, Rape Redefined, 10 Harv. L. & Pol’y Rev. 431, 443 (2016). ↑
  9.  See infra Section II.B. ↑
  10.  See, e.g., Eric A. Johnson, Trust and the Limits of Trust: Rethinking the Doctrine of Novus Actus Interveniens, 2025 U. Ill. L. Rev. 743, 751–55; Guyora Binder & Luis Chiesa, The Puzzle of Inciting Suicide, 56 Am. Crim. L. Rev. 65, 99 (2019). ↑
  11.  See Michael S. Moore, The Metaphysics of Causal Intervention, 88 Calif. L. Rev. 827, 836 (2000) (“[I]f the defendant coercively supplies the motive for the intervenor’s behavior, then that behavior does not break the causal chain between defendant’s action and the harm.”). ↑
  12.  See Binder & Chiesa, supra note 10, at 70 (explaining that causation in criminal law is “little more than a normative attribution of responsibility for a result”). ↑
  13.  See, e.g., Heidi M. Hurd, The Moral Magic of Consent, 2 Legal Theory 121, 123 (1996) (“[C]onsent defeats any rights on the part of others (including the person consenting) that the actor not do the wrong act.”). ↑
  14.  See id. at 124 (“Whether it functions as a ‘moral transformative’ or as a ‘stained permission,’ consent derives its normative power from the fact that it alters the obligations and permissions that collectively determine the rightness of others’ actions.”). ↑
  15.  See, e.g., Boro v. Superior Ct., 210 Cal. Rptr. 122, 123 (Ct. App. 1985) (defendant posed as a doctor and convinced the victim that she needed to have sex with an anonymous donor in order to treat “a dangerous, highly infectious and perhaps fatal disease”). ↑
  16.  See infra Subsection II.C.2. ↑
  17.  See infra Subsection I.C.2. ↑
  18.  The traditional common law definition of rape was “carnal knowledge of a woman forcibly and against her will.” 4 William Blackstone, Commentaries *210. In this formulation, still relevant in roughly half of U.S. states, MacKinnon, supra note 8, at 437 & n.26, the element that the intercourse be nonconsensual (or “against her will”) is an attendant circumstance, see, e.g., Susan Estrich, Rape, 95 Yale L.J. 1087, 1121 n.101 (1986). Attendant circumstances “refer to the objective situation that the law requires to exist, in addition to the defendant’s act or any results that the act may cause.” Model Penal Code § 5.01 cmt. at 301 n.9 (A.L.I., Official Draft and Revised Comments 1985). ↑
  19.  See infra Section I.C. ↑
  20.  Although there are of course varied justifications for the criminal law, many leading theorists agree that blameworthiness is or ought to be the centerpiece of our criminal system. See, e.g., Douglas Husak, “Broad” Culpability and the Retributivist Dream, 9 Ohio St. J. Crim. L. 449, 449 (2012); Michael Moore, Placing Blame: A General Theory of the Criminal Law 153–54 (1997); Larry Alexander & Kimberly Kessler Ferzan with Stephen Morse, Crime and Culpability: A Theory of Criminal Law 66–67 (2009). ↑
  21.  See infra Section III.A. ↑
  22.  Ben A. McJunkin, Rape as Indignity, 109 Corn. L. Rev. 385, 447 (2024). ↑

  23.  See Model Penal Code §§ 213.1–213.2, 213.4–213.5 (A.L.I., Tentative Draft No. 6, 2022). ↑

The Promise and Peril of Direct Democracy After Dobbs

In Dobbs v. Jackson Women’s Health Organization, the Supreme Court deconstitutionalized the right to choose abortion, announcing that it was leaving the power to regulate abortion “to the people and their elected representatives.” In the wake of Dobbs, state-level “elected representatives” quickly got to work, resulting in dramatic changes to the abortion access landscape. But increasingly, “the people” have also sought to shape the law directly: voters, using mechanisms like ballot initiatives and referenda, have gone to the ballot box to register their views on reproductive freedom. Many of those initiatives have preserved or expanded access to abortion, demonstrating the potential for direct democracy to counteract troubling facets of the current landscape. In the face of increasingly minoritarian institutions and some courts’ abandonment of their traditional rights-protecting and democracy-enhancing functions, direct democracy seems full of promise.

As this Article reminds, however, direct democracy has a checkered past, which must inform any evaluation of its current potential. For as much as direct democracy has been used to achieve progressive ends, it has also been used to limit minority rights. Indeed, over the last sixty years, those seeking to counteract the gains of the Civil Rights Movement have repeatedly and sometimes successfully turned to direct democracy to do so. This Article reviews that history, which spans issues ranging from affirmative action to same-sex marriage, and mines it for lessons for today.

Several insights emerge from this historical excavation, all of which should inform our understanding of the recent turn to direct democracy to channel popular support for reproductive rights. One insight is that direct democracy can threaten minority rights; there is scant reason to believe that direct democracy will reliably protect the interests of unpopular or historically subordinated groups. But a second insight is that the direct democracy of today differs in critical ways from the direct democracy of even fifty years ago, in part because of the deteriorating health and strength of democratic institutions and the upending of a constitutional order that once gave relatively robust protection to equality-related rights.

Building on these insights, this Article maintains that both the promise and peril of direct democracy must be evaluated in the context of the broader constitutional and democratic landscape. Today’s use of direct democracy to secure reproductive rights poses a challenge to institutions that have failed to channel the popular will. In addition, direct democracy has come to the fore at a moment when the foundations of judicial enforcement of fundamental rights and equal protection are being reexamined. Direct democracy’s success in securing abortion rights represents an important countercurrent to these developments. But meaningfully, this dynamic landscape may contain the groundwork for reexamining—and perhaps reorganizing—the existing equal protection framework. Direct democracy’s success in securing abortion rights may, paradoxically, hasten that transformation.

Introduction

Our Nation’s historical understanding of ordered liberty does not prevent the people’s elected representatives from deciding how abortion should be regulated.1 1.Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2257 (2022).Show More

But the people of the various States may evaluate those interests differently.2 2.Id.Show More

In Dobbs v. Jackson Women’s Health Organization,3 3.Id. at 2228.Show More the Supreme Court overruled Roe v. Wade4 4.410 U.S. 113 (1973).Show More and Planned Parenthood of Southeastern Pennsylvania v. Casey5 5.505 U.S. 833 (1992).Show More on the view that a right to abortion was neither explicit in the text of the Constitution nor rooted in the history and traditions of this country.6 6.Dobbs, 142 S. Ct. at 2242.Show More In casting aside a half century of precedent, the Dobbs majority noted that it was merely returning the power to weigh the competing interests at stake in abortion “to the people and their elected representatives.”7 7.Id. at 2259.Show More

In the wake of Dobbs, the abortion access landscape has changed dramatically as states have moved to clarify their positions on the right to access abortion. But meaningfully, it is not just state legislatures that are asserting their positions on abortion access. Increasingly, voters are also directly registering their views on reproductive freedom at the ballot box.8 8.See Laura Kusisto & Jennifer Calfas, Abortion-Rights Supporters Prevail in Midterm Ballot Measures, Wall St. J., https://www.wsj.com/articles/abortion-rights-supporters-prevail-in-midterm-ballot-measures-11667986139?mod=article_inline (last updated Nov. 9, 2022, at 18:36 ET) (detailing the outcomes of 2022 abortion-related ballot measures).Show More

From blue states like Vermont and New York to red states like Kansas and Missouri, voters have turned to direct democracy to enshrine abortion rights in state constitutions—with considerable success.9 9.See Ballot Tracker: Outcome of Abortion-Related State Constitutional Amendment Measures in the 2024 Election, KFF [hereinafter KFF Ballot Tracker], https://www.kff.org/wo‌mens-health-policy/dashboard/ballot-tracker-status-of-abortion-related-state-constitutional-a‌mendment-measures/ [https://perma.cc/F99S-27U2] (last updated Nov. 6, 2024).Show More Unsurprisingly, direct democracy’s success in protecting reproductive freedom has provoked considerable resistance and efforts to curb direct democracy’s reach. In some states, officials have sought to limit—or block entirely—direct democratic action in support of abortion rights.

Direct democracy, then, has been an important site of mobilization, contestation, and conflict in the post-Dobbs era. In many ways, direct democracy’s deployment as a vehicle for protecting reproductive rights accords with its origins in the Progressive Era, when it was frequently used to circumvent captured state legislatures and courts to secure various economic and employment protections for working men and women.10 10.See infra Section II.A.Show More

But if direct democracy’s early history accords with its contemporary promise as a safeguard of reproductive freedom, its more recent history gestures toward its perils. Rather than advancing progressive causes, direct democracy has more recently been deployed to limit the rights and trample the interests of minorities. For example, after the passage of the Civil Rights Act of 1964, a majority of Californians enacted a ballot measure that counteracted federal antidiscrimination protections by adding a right to discriminate to the state constitution.11 11.Proposition 14 was explicitly designed to override the state’s fair housing act, which had been passed in 1963. Ariela Gross, A Grassroots History of Colorblind Conservative Constitutionalism, 44 Law & Soc. Inquiry 58, 63 (2019). It was later invalidated in Reitman v. Mulkey, 387 U.S. 369, 375–76, 381 (1967).Show More In 2006 and 2010, respectively, in the wake of a Supreme Court decision blessing the limited use of race in higher education admissions,12 12.Grutter v. Bollinger, 539 U.S. 306, 343 (2003).Show More both Michigan and Arizona enacted ballot initiatives banning affirmative action measures in public employment, education, and contracting.13 13.Suzanne Lowe, Mich. Senate Fiscal Agency, September 2006 Ballot Proposal 06-2: An Overview 2 (2006), https://sfa.senate.michigan.gov/Publications/BallotProps/Proposal06-2.‌pdf [https://perma.cc/6CPN-HDHJ]; Michigan Proposal 2: Affirmative Action Ban Initiative (2006), Ballotpedia [hereinafter Michigan Proposal 2], https://ballotpedia.org/Michigan_Prop‌osal_2,_Affirmative_Action_Ban_Initiative_(2006) [https://perma.cc/DSE2-79LV] (last visited Nov. 4, 2025); H.R. Con. Res. 2019, 49th Leg., 1st Reg. Sess. (Ariz. 2009) (codified at Ariz. Const. art. II, § 36); Arizona Proposition 107: Affirmative Action Amendment (2010), Ballotpedia, https://ballotpedia.org/Arizona_Proposition_107,_Affirmative_Action_Amend‌ment_(2010) [https://perma.cc/SH4D-JQBR] (last visited Nov. 4, 2025); see also Schuette v. Coal. to Def. Affirmative Action, Integration & Immigrant Rts. & Fight for Equal. by Any Means Necessary (BAMN), 572 U.S. 291, 298–99, 312–14 (2014) (plurality opinion) (upholding Proposal 2 amidst claims that it was racially discriminatory).Show More And in 2008, after a Supreme Court of California decision recognizing a state constitutional right to same-sex marriage, Californians enacted Proposition 8, which amended the state constitution to permit legal recognition of only opposite-sex marriages.14 14.See Hollingsworth v. Perry, 570 U.S. 693, 701 (2013).Show More

These episodes have prompted scholars to raise practical and theoretical concerns about direct democracy as a vehicle for policymaking. On this account, direct democracy’s independence from representative government is a double-edged sword. While direct democracy allows voters to evade captured legislatures, it also bypasses structural mechanisms designed to protect minority interests, allowing voters to impose majority will without the typical governmental checks that exist in more traditional policymaking venues. Further, direct democracy’s susceptibility to capture by moneyed interests, coupled with its lack of transparency and limited opportunities for deliberation, amplifies concerns that it may enable the “tyranny of the majority.”15 15.See 1 Alexis de Tocqueville, Democracy in America 410 (Eduardo Nolla ed., James T. Schleifer trans., Liberty Fund 2012) (1835).Show More

This recent history and the concerns it prompts stand in stark contrast to the current moment, when direct democracy is hailed as a means of safeguarding rights imperiled by the actions of conservative courts and legislatures. Indeed, the proliferation of gerrymandering and other efforts to distort the mechanisms of representative democracy, in tandem with judicial actions to curtail or limit rights, has led to renewed interest among progressives in initiatives, referenda, and other mechanisms of direct democracy.16 16.See Rucho v. Common Cause, 139 S. Ct. 2484, 2491–92 (2019) (describing partisan gerrymandering in North Carolina and Maryland); see, e.g., Proposed Amendments for 2020: Proposed Constitutional Amendment #1, Va. Dep’t of Elections, https://www.elections.virgini‌a.gov/proposed-constitutional-amendment-2020/ [https://perma.cc/KU5L-TVXA] (last visited Nov. 4, 2025) (proposing the creation of a bipartisan districting commission).Show More At the same time, conservatives who once embraced direct democracy as a counterweight to the legislative and judicial imposition of minority rights now labor mightily to restrict access to direct democracy—particularly when it comes to abortion.

How should we understand these developments? In a distorted democratic landscape where institutions are increasingly minoritarian and some courts have abandoned their traditional rights-protecting and democracy-enhancing functions, should progressives embrace direct democracy as a necessary corrective to gerrymandering and institutional capture? What can the turn to direct democracy tell us about the relationship between majoritarianism, minority rights, democracy, and the institutional role of the courts today?

This Article takes up these important questions. Using direct democracy mobilization over abortion rights as a point of entry, we examine direct democracy’s status as a safety valve for the preservation of reproductive rights against its complicated history. The contrast between direct democracy’s past and present yields important insights that gesture toward broader questions about the health and strength of democratic institutions. As we maintain, direct democracy cannot be evaluated in the abstract; its promise—and perils—must be considered in light of the current electoral landscape, which, as a result of the Supreme Court’s interventions, is decidedly less representative and less democratic than in previous epochs.17 17.See Melissa Murray & Katherine Shaw, Dobbs and Democracy, 137 Harv. L. Rev. 728, 776–77 (2024).Show More

Just as importantly, direct democracy’s appeal as a mechanism for preserving reproductive rights speaks directly to a shifting jurisprudential landscape that has rescinded fundamental rights and limited protections for underrepresented groups. On this account, part of direct democracy’s appeal as a means of securing abortion rights relates to Dobbs itself—and its potential to completely revamp the constitutional order, with respect to both fundamental rights and our understanding of equal protection.

This Article proceeds as follows. Parts I and II lay a foundation for an examination of direct democracy. Specifically, Part I provides a taxonomy of the forms of direct democracy, and Part II recounts direct democracy’s nineteenth-century origins as a counterweight to federal and state efforts to limit economic regulation and labor protections, as well as its post-Civil Rights Movement evolution as a vehicle for civil rights backlash.

Part III pivots to consider scholarly and juridical responses to the dangers that direct democracy may pose to minority interests. In particular, this Part considers the Supreme Court’s efforts to weigh the benefits of direct democracy as an expression of popular will against equality concerns and the courts’ institutional obligation to protect minority interests.

Part IV returns to the subject of this Article: abortion and direct democracy. As this Part observes, throughout the last half century, when direct democracy measures were successful in countering civil rights gains, they were far less successful in either advancing or curtailing reproductive rights—that is, until the Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization. In Dobbs’s wake, direct democracy has emerged as a potent means of preserving—and even expanding—abortion rights at the state level. The disjunction between direct democracy’s lackluster history as a vehicle for abortion policymaking and its potent current use to preserve abortion rights speaks to recent constitutional developments that have eroded traditional safeguards for individual rights.

With this insight in mind, Part V considers the shifting dynamics of the electoral and constitutional firmament that make direct democracy especially appealing at this moment. As this Part explains, direct democracy has emerged as a response to critical changes in the electoral landscape—changes that have made representative government less responsive to popular will. Direct democracy speaks to these democratic deficits by allowing the people to register their preferences for reproductive freedom directly, unmediated by the structural impediments of representative government.

But perhaps more profoundly, direct democracy also responds to the seismic changes in the constitutional order that Dobbs has wrought, as well as the changes that the decision may, in time, underwrite. Dobbs fundamentally altered the landscape of fundamental rights and substantive due process by rescinding the abortion right and further cementing a “history and tradition”-focused method of constitutional interpretation; it has also laid a foundation for a profound shift in the structure of equal protection and women’s status within it. In this regard, the emerging turn to direct democracy to secure abortion rights may reflect both practical realities and increasing anxiety about a new, emerging constitutional order.

In view of these developments, Part VI shifts from the theoretical and conceptual to the practical. Recognizing direct democracy’s appeal in this shifting electoral and jurisprudential landscape, we offer a series of prescriptions aimed at optimizing direct democracy’s promise as a vehicle for securing reproductive freedom while minimizing its likely perils. A brief conclusion follows.

  1.  Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2257 (2022). ↑

  2.  Id. ↑
  3.  Id. at 2228. ↑
  4.  410 U.S. 113 (1973). ↑
  5.  505 U.S. 833 (1992). ↑
  6.  Dobbs, 142 S. Ct. at 2242. ↑
  7.  Id. at 2259. ↑
  8.  See Laura Kusisto & Jennifer Calfas, Abortion-Rights Supporters Prevail in Midterm Ballot Measures, Wall St. J., https://www.wsj.com/articles/abortion-rights-supporters-prevail-in-midterm-ballot-measures-11667986139?mod=article_inline (last updated Nov. 9, 2022, at 18:36 ET) (detailing the outcomes of 2022 abortion-related ballot measures). ↑
  9.  See Ballot Tracker: Outcome of Abortion-Related State Constitutional Amendment Measures in the 2024 Election, KFF [hereinafter KFF Ballot Tracker], https://www.kff.org/wo‌mens-health-policy/dashboard/ballot-tracker-status-of-abortion-related-state-constitutional-a‌mendment-measures/ [https://perma.cc/F99S-27U2] (last updated Nov. 6, 2024). ↑
  10.  See infra Section II.A. ↑
  11.  Proposition 14 was explicitly designed to override the state’s fair housing act, which had been passed in 1963. Ariela Gross, A Grassroots History of Colorblind Conservative Constitutionalism, 44 Law & Soc. Inquiry 58, 63 (2019). It was later invalidated in Reitman v. Mulkey, 387 U.S. 369, 375–76, 381 (1967). ↑
  12.  Grutter v. Bollinger, 539 U.S. 306, 343 (2003). ↑
  13.  Suzanne Lowe, Mich. Senate Fiscal Agency, September 2006 Ballot Proposal 06-2: An Overview 2 (2006), https://sfa.senate.michigan.gov/Publications/BallotProps/Proposal06-2.‌pdf [https://perma.cc/6CPN-HDHJ]; Michigan Proposal 2: Affirmative Action Ban Initiative (2006), Ballotpedia [hereinafter Michigan Proposal 2], https://ballotpedia.org/Michigan_Prop‌osal_2,_Affirmative_Action_Ban_Initiative_(2006) [https://perma.cc/DSE2-79LV] (last visited Nov. 4, 2025); H.R. Con. Res. 2019, 49th Leg., 1st Reg. Sess. (Ariz. 2009) (codified at Ariz. Const. art. II, § 36); Arizona Proposition 107: Affirmative Action Amendment (2010), Ballotpedia, https://ballotpedia.org/Arizona_Proposition_107,_Affirmative_Action_Amend‌ment_(2010) [https://perma.cc/SH4D-JQBR] (last visited Nov. 4, 2025); see also Schuette v. Coal. to Def. Affirmative Action, Integration & Immigrant Rts. & Fight for Equal. by Any Means Necessary (BAMN), 572 U.S. 291, 298–99, 312–14 (2014) (plurality opinion) (upholding Proposal 2 amidst claims that it was racially discriminatory). ↑
  14.  See Hollingsworth v. Perry, 570 U.S. 693, 701 (2013). ↑
  15.  See 1 Alexis de Tocqueville, Democracy in America 410 (Eduardo Nolla ed., James T. Schleifer trans., Liberty Fund 2012) (1835). ↑
  16.  See Rucho v. Common Cause, 139 S. Ct. 2484, 2491–92 (2019) (describing partisan gerrymandering in North Carolina and Maryland); see, e.g., Proposed Amendments for 2020: Proposed Constitutional Amendment #1, Va. Dep’t of Elections, https://www.elections.virgini‌a.gov/proposed-constitutional-amendment-2020/ [https://perma.cc/KU5L-TVXA] (last visited Nov. 4, 2025) (proposing the creation of a bipartisan districting commission). ↑
  17.  See Melissa Murray & Katherine Shaw, Dobbs and Democracy, 137 Harv. L. Rev. 728, 776–77 (2024). ↑

Faces of Formalism

Formalist approaches to legal interpretation, such as textualism and originalism, are ascendant in federal statutory and constitutional law. Yet with success have come uncertainty and dissatisfaction. Formalists and their critics observe that textualism and originalism can seem as open-ended as the purposive and dynamic methods they were supposed to replace. This Article tries to diagnose the source of this discontent. It does so by identifying two different faces of formalist interpretation: the formalism of authority—adherence to original sources of law—and the formalism of method—constraint through predictable, rule-bound interpretation. Defenses of formalism often assume these two paths to constraint run together, but they can come apart. The careful search for an authoritative source is not readily amenable to rules. At the same time, seeking certainty and impersonality through mechanical methods risks interpretive drift from original, authoritative norms.

Once we notice this tension, we see it everywhere in arguments about interpretive formalism: intentionalism versus public meaning, what kind of intentionalism, what kind of public meaning, the force of original expected applications, whether to treat interpretive method as law, and the centrality of rules over standards. Answers to these questions turn on how we reconcile or prioritize these two faces of formalism. It turns out that the standard contrasts between “form and substance,” or “form and function,” or “letter and spirit,” miss important parts of the picture. Different substantive visions about law and interpretation compete within the confines of form. Method formalism’s goals are more functional, while the spirit of authoritative formalism is less likely to confine itself to the letter. Although no synthesis should obscure either face of formalism entirely, the most plausible approach places the search for authority at the center of the practice.

Introduction

Formalist approaches to legal interpretation, such as textualism and originalism, are ascendant in federal statutory and constitutional law. At the same time, jurists and scholars today cannot seem to agree about what it means for an approach to be “formal.” There is basic agreement on a core principle that formalist interpretation should direct decision-making and constrain normative judgment about what the law ought to be. But beyond that, things get messy. In fact, recent works by formalists and their critics observe that textualism and originalism can seem as open-ended as the purposive and dynamic methods they were supposed to replace.1 1.See generally, e.g., Tara Leigh Grove, Which Textualism?, 134 Harv. L. Rev. 265, 292–95 (2020) (noting that one of the goals of “early textualists” was to “constrain judicial discretion,” while highlighting that the textualism employed by some members of the Court today “carries an analogous risk of interpretive leeway”); Anita S. Krishnakumar, Backdoor Purposivism, 69 Duke L.J. 1275, 1276 (2020) (arguing that “the Court’s textualist Justices have been quietly engaging in a form of purposive analysis”); James A. Macleod, Standard Textualism, 124 Mich. L. Rev. 661, 680–81 (2026) (“[M]odern pluralism’s recourse to extratextual factors may make it the more rule-like, discretion-constraining method.”); Andrew S. Oldham, On Inkblots and Truffles, 135 Harv. L. Rev. F. 154, 170 (2022) (“[W]e need more and more work that shows particular constitutional provisions have objectively determinate meanings based on rigorous analysis and academic debate over relevant sources of original meaning.”).Show More

For a less abstract setup of the problem, consider Bostock v. Clayton County.2 2.140 S. Ct. 1731, 1738–39 (2020).Show More Title VII of the Civil Rights Act of 1964 makes it “unlawful” for employers to discriminate against a person “because of such individual’s race, color, religion, sex, or national origin.”3 3.42 U.S.C. § 2000e-2(a)(1).Show More Writing for the majority, Justice Gorsuch held that the “ordinary public meaning of its terms at the time of its enactment” compelled the judgment that Title VII prohibits employment discrimination against gay and transgender persons.4 4.Bostock, 140 S. Ct. at 1738, 1741.Show More Justice Gorsuch rejected the objection that “few in 1964 would have expected Title VII to apply to” such discrimination.5 5.Id. at 1749.Show More He replied that such arguments “impermissibly seek[] to displace the plain meaning of the law in favor of something lying beyond it.”6 6.Id. at 1750.Show More That something, whether it be unwritten intention, purpose, or lurking policy preferences, is not the law.

Justice Alito, joined by Justice Thomas, dissented, claiming that the majority was engaging in “legislation” under the guise of interpretation.7 7.Id. at 1754 (Alito, J., dissenting, joined by Thomas, J.).Show More He likened the majority opinion to a pirate ship, smuggling in statutory updates under the false flag of textualism.8 8.Id. at 1755–56.Show More No reader in 1964, he objected, “would have thought” the statute bore the “exotic meaning” that Justice Gorsuch elicited through the implications of the language “because of ‘sex.’”9 9.Id. at 1771–72.Show More Justice Kavanaugh’s dissent objected that good textualism looks for the “ordinary meaning of phrases,” not the “literal meaning” of the words in a phrase taken separately.10 10.See id. at 1828 (Kavanaugh, J., dissenting).Show More Ordinary meaning draws on “relevant social and linguistic conventions” to “read the text in context.”11 11.Id. at 1825 (quoting John F. Manning, The Absurdity Doctrine, 116 Harv. L. Rev. 2387, 2392–93 (2003) [hereinafter Manning, Absurdity Doctrine]).Show More He argued that the context of the 1964 enactment and a range of subsequent discrimination legislation show that “common parlance and common legal usage” foreclose the majority’s opinion.12 12.Id. at 1828–30, 1832–33.Show More

All three opinions claimed adherence to the Supreme Court’s governing mode of statutory interpretation: original public meaning textualism. Each opinion also claimed that those on the other side of the judgment were doing it wrong. We can multiply such examples beyond Bostock: Is tobacco a “drug” subject to FDA regulation? The literal terms of the Federal Food, Drug, and Cosmetic Act’s (“FDCA”) definitions indicate it is.13 13.See Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 164 (2000) (Breyer, J., dissenting).Show More Yet an opinion joined by textualist Justices Scalia and Thomas held that inferences from the broader structure of the statutory regime and other tobacco-specific legislation compelled the opposite conclusion.14 14.See id. at 126 (majority opinion) (holding that “[s]uch authority is inconsistent with the intent that Congress has expressed in the FDCA’s overall regulatory scheme and in the tobacco-specific legislation that it has enacted subsequent to the FDCA”).Show More Do the Eleventh Amendment’s protections extend only to suits against a state brought by the citizens of other states and nations? There are strong arguments, grounded in original public meaning of the constitutional text, that it is so limited.15 15.See, e.g., John F. Manning, The Eleventh Amendment and the Reading of Precise Constitutional Texts, 113 Yale L.J. 1663, 1740–49 (2004) [hereinafter Manning, Eleventh Amendment] (making that argument). For a collection of citations to such arguments, see Anthony J. Bellia Jr. & Bradford R. Clark,State Sovereign Immunity and the New Purposivism, 65 Wm. & Mary L. Rev. 485, 527 n.182 (2024).Show More At the same time, the Court has held repeatedly that the original meaning of the text, in light of its legal backdrops, means more.16 16.See, e.g., Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54 (1996) (explaining “we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition . . . which it confirms” (alteration in original) (quoting Blatchford v. Native Vill. of Noatak, 501 U.S. 775, 779 (1991) (Scalia, J.))); Bellia & Clark, supra note 15, at 531 (“Although Seminole Tribe did not provide a comprehensive account of state sovereign immunity, the Court suggested that the constitutional basis of such immunity was independent of—and predated—the Eleventh Amendment.”).Show More The arguments here concern competing inferences not merely about the same textual evidence, but about what text and context count as good evidence for finding the law.

Recent scholarship on interpretive formalism follows suit. Professor Lawrence Solum contends that public meaning textualism cannot stop at bare semantic meaning, but must also account for the text’s richer pragmatic context.17 17.See generally Lawrence B. Solum, Pragmatics and Textualism, 33 J.L. & Pol’y 2, 7–9 (2025) [hereinafter Solum, Pragmatics and Textualism]. See also Saikrishna Bangalore Prakash, Spirit, 173 U. Pa. L. Rev. 937, 945 (2025) (arguing that “every sort of originalist should come to grips with spirit’s pervasive role” in Founding-era interpretation).Show More Professor Stephen Sachs has noted “originalists’ serene acceptance—or smug disregard, as their critics might say—of the difficulties of doing legal history or the frequent mistakes of prominent judges.”18 18.Stephen E. Sachs, Originalism: Standard and Procedure, 135 Harv. L. Rev. 777, 779–80 (2022) [hereinafter Sachs, Standard and Procedure].Show More Sachs replies that if such a search leads to an answer that “is right about the law, then it’s right about the law, though it may be hard to carry out well.”19 19.Id. at 780.Show More There is no reason why “the correct approach” must “also be a practical one.”20 20.Id. at 792.Show More Others are less sanguine. Professor Tara Leigh Grove objects that sweeping in wide contextual evidence to define public meaning permits just the kind of judicial discretion that textualism was supposed to avoid.21 21.See Grove, supra note 1, at 292–95.Show More Judge Andrew Oldham worries that an originalism that hardly ever leads to ready answers may not be one worth defending.22 22.See Oldham, supra note 1, at 156 (“The best (dare I say only?) way to define and defend originalism against its critics is to show that some (dare I hope all?) provisions of the Constitution have determinate or ‘thick’ original meanings—that is, that we can find the true, genuine, and objectively correct meaning of a constitutional provision with greater ease than a hound blindly searching for a truffle.”).Show More Professor James Macleod offers the ironic observation that the purportedly formalist textualism at today’s Supreme Court looks much more like a law of standards, not a law of rules.23 23.Macleod, supra note 1, at 668 (arguing that “[t]he more strictly text-based the interpretation” in today’s Supreme Court, “the more standard-like the resulting legal content”).Show More

What are we to make of these disagreements? This Article tries to sort out the problem by taking a closer look at what interpretive formalism is for. Interpretive formalists share a common goal of constraint through conformity to an external rule or standard.24 24.See infra Part I.Show More But there are different ways of being constrained. One way—the formalism of authority—focuses on conforming to original sources of law.25 25.See infra Section I.A.Show More Another way—the formalism of method—conforms to a predictable, rule-bound approach to interpretation.26 26.See infra Section I.B.Show More Formalists often assume these two paths to constraint run together: normative arguments for methods like originalism and textualism both respect the authoritative choices of the people and are more manageable and predictable than freewheeling purposive or moral inquiries. Yet these two paths to constraint often, in fact, diverge. The basic reason is this: a careful search for an original, authoritative source is not amenable to mechanical methods, and interpretive simplicity risks interpretive drift from original, authoritative norms.27 27.See infra Part II.Show More

If we can no longer believe that authority and method support a unified approach to formalist constraint, we have to make sense of a fragmented world east of methodological Eden. Part of that is appreciating how so many neuralgic questions for formalists trace back to disagreements over whether to prioritize original authority or methodological clarity. In Bostock, for example, Justice Gorsuch’s adherence to the formalism of method led him to rule for the petitioner and accuse his context-friendly dissenters of backdoor purposivism, so to speak.28 28.See Bostock v. Clayton County, 140 S. Ct. 1731, 1753 (2020); Krishnakumar, supra note 1, at 1278 (contending that textualist jurists “at times engage in a form of backdoor purposivism, or at least speculation about legislative intent, that looks surprisingly similar to the intent speculation inherent to traditional purposivism”).Show More The dissenters’ allegiance to the formalism of authority led them to return the favor by characterizing Justice Gorsuch’s more algorithmic method as statutory updating on the sly.29 29.See Bostock, 140 S. Ct. at 1755–56 (Alito, J., dissenting).Show More More generally, understanding this tension within formalism illuminates a number of vexed topics in formalist circles, such as original intention versus original public meaning; if intentionalism, what kind; if public meaning, what kind; the role of original expected applications; whether interpretive method should be treated as law; and the role of rules and standards in formalist interpretation.

In the name of constraint, then, some formalist interpretation prioritizes authoritative sources and other practices emphasize method. In doing so, however, these contrasting approaches point to very different accounts of the meaning and goals of interpretive constraint. Each one also draws on different accounts of what law is and what it is for, even if these accounts are implicit. An understanding of constraint that focuses on authority is open to methodological complexity that would surprise the first wave of formalists. An account of constraint that prioritizes method points toward an understanding of authoritative sources very different from the theory from which it originated. It turns out, then, that the standard contrasts between “form and substance,” or “form and function,” or “letter and spirit,” miss important parts of the picture. Different substantive visions about the nature and purposes of law and interpretation compete within the confines of form. Method formalism’s goals are more functional, while the spirit of authoritative formalism is less likely to confine itself to the letter. Formalists, in the end, need to choose which understanding of constraint to prioritize in their interpretive methods. This Article contends that, while no new synthesis should obscure either face of formalism entirely, the most plausible reconstruction of interpretive formalism should place the search for authority at the center of the practice.

Two quick notes before starting. First, on scope: an article addressing statutory and constitutional interpretation assumes that both practices call for similar methods. I am inclined to think they do, but that could be wrong. Nevertheless, I treat them similarly for purposes of argument, particularly since many scholars and jurists discussed here do too. This focus might also be too narrow for ignoring contracts, wills, and trusts. I do not discuss them because I have less considered views about interpreting private-law instruments and, for better or worse, most of the work engaged here does not address them, either. In short, I am smoothing over complexities in an Article that is already long enough.

The second note is on relevance. What if you think formalism is bunk?30 30.Cf. Mitchell N. Berman, Originalism Is Bunk, 84 N.Y.U. L. Rev. 1, 8 (2009) (“[O]riginalism . . . is not merely false but pernicious as well.”).Show More Just as there is little point in attending to a missive that seeks to unravel the mysteries of phlogiston, an anti-formalist reader might not want to bother here, either. That would be too quick. Even non-formalist theories give legal formality their due. Professors Henry Hart and Albert Sacks’s purposivism relies heavily on the original enactment and its context.31 31.See Henry M. Hart, Jr. & Albert M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law 1377–80 (William N. Eskridge, Jr. & Philip P. Frickey eds., 1994).Show More For Professor William Eskridge, good, old-fashioned statutory text is a crucial segment of his interpretive “funnel of abstraction,” alongside other less formal dimensions.32 32.See William N. Eskridge, Jr., Dynamic Statutory Interpretation 55–56 (1994).Show More To the extent that legal formality plays a role in any approach to interpretation, interpreters face cognate problems confronting the more full-blooded formalist, albeit as a subdivision of a larger, more dynamic approach to reading law.

The Article proceeds as follows. Part I defines interpretive formalism in general and then sketches the two faces of formality in particular through examples and arguments from leading legal formalists. It then shows how formalist jurists often assume these competing approaches are compatible. Part II complicates that picture by explaining how these two paths to interpretive constraint do not always run in parallel. It then traces these complexities through a number of inter-formalist arguments about original intention, public meaning, expected applications, the law of interpretation, and the role of rules and standards. Part III takes stock, first by situating this dilemma in the recent history and conceptual apparatus of interpretive formalism. It then explains how these disagreements at the level of interpretive method are rooted in deeper tensions in moral arguments for legal formality more generally. It identifies the competing visions that prioritize authority or method, respectively, and offers a brief argument for why authority should anchor interpretive practice. A brief conclusion follows.

  1.  See generally, e.g., Tara Leigh Grove, Which Textualism?, 134 Harv. L. Rev. 265, 292–95 (2020) (noting that one of the goals of “early textualists” was to “constrain judicial discretion,” while highlighting that the textualism employed by some members of the Court today “carries an analogous risk of interpretive leeway”); Anita S. Krishnakumar, Backdoor Purposivism, 69 Duke L.J. 1275, 1276 (2020) (arguing that “the Court’s textualist Justices have been quietly engaging in a form of purposive analysis”); James A. Macleod, Standard Textualism, 124 Mich. L. Rev. 661, 680–81 (2026) (“[M]odern pluralism’s recourse to extratextual factors may make it the more rule-like, discretion-constraining method.”); Andrew S. Oldham, On Inkblots and Truffles, 135 Harv. L. Rev. F. 154, 170 (2022) (“[W]e need more and more work that shows particular constitutional provisions have objectively determinate meanings based on rigorous analysis and academic debate over relevant sources of original meaning.”). ↑
  2.  140 S. Ct. 1731, 1738–39 (2020). ↑
  3.  42 U.S.C. § 2000e-2(a)(1). ↑
  4.  Bostock, 140 S. Ct. at 1738, 1741. ↑
  5.  Id. at 1749. ↑
  6.  Id. at 1750. ↑
  7.  Id. at 1754 (Alito, J., dissenting, joined by Thomas, J.). ↑
  8.  Id. at 1755–56. ↑
  9.  Id. at 1771–72. ↑
  10.  See id. at 1828 (Kavanaugh, J., dissenting). ↑
  11.  Id. at 1825 (quoting John F. Manning, The Absurdity Doctrine, 116 Harv. L. Rev. 2387, 2392–93 (2003) [hereinafter Manning, Absurdity Doctrine]). ↑
  12.  Id. at 1828–30, 1832–33. ↑
  13.  See Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 164 (2000) (Breyer, J., dissenting). ↑
  14.  See id. at 126 (majority opinion) (holding that “[s]uch authority is inconsistent with the intent that Congress has expressed in the FDCA’s overall regulatory scheme and in the tobacco-specific legislation that it has enacted subsequent to the FDCA”). ↑
  15.  See, e.g., John F. Manning, The Eleventh Amendment and the Reading of Precise Constitutional Texts, 113 Yale L.J. 1663, 1740–49 (2004) [hereinafter Manning, Eleventh Amendment] (making that argument). For a collection of citations to such arguments, see Anthony J. Bellia Jr. & Bradford R. Clark, State Sovereign Immunity and the New Purposivism, 65 Wm. & Mary L. Rev. 485, 527 n.182 (2024). ↑
  16.  See, e.g., Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54 (1996) (explaining “we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition . . . which it confirms” (alteration in original) (quoting Blatchford v. Native Vill. of Noatak, 501 U.S. 775, 779 (1991) (Scalia, J.))); Bellia & Clark, supra note 15, at 531 (“Although Seminole Tribe did not provide a comprehensive account of state sovereign immunity, the Court suggested that the constitutional basis of such immunity was independent of—and predated—the Eleventh Amendment.”). ↑
  17.  See generally Lawrence B. Solum, Pragmatics and Textualism, 33 J.L. & Pol’y 2, 7–9 (2025) [hereinafter Solum, Pragmatics and Textualism]. See also Saikrishna Bangalore Prakash, Spirit, 173 U. Pa. L. Rev. 937, 945 (2025) (arguing that “every sort of originalist should come to grips with spirit’s pervasive role” in Founding-era interpretation). ↑
  18.  Stephen E. Sachs, Originalism: Standard and Procedure, 135 Harv. L. Rev. 777, 779–80 (2022) [hereinafter Sachs, Standard and Procedure]. ↑
  19.  Id. at 780. ↑
  20.  Id. at 792. ↑
  21.  See Grove, supra note 1, at 292–95. ↑
  22.  See Oldham, supra note 1, at 156 (“The best (dare I say only?) way to define and defend originalism against its critics is to show that some (dare I hope all?) provisions of the Constitution have determinate or ‘thick’ original meanings—that is, that we can find the true, genuine, and objectively correct meaning of a constitutional provision with greater ease than a hound blindly searching for a truffle.”). ↑
  23.  Macleod, supra note 1, at 668 (arguing that “[t]he more strictly text-based the interpretation” in today’s Supreme Court, “the more standard-like the resulting legal content”). ↑
  24.  See infra Part I. ↑
  25.  See infra Section I.A. ↑
  26.  See infra Section I.B. ↑
  27.  See infra Part II. ↑
  28.  See Bostock v. Clayton County, 140 S. Ct. 1731, 1753 (2020); Krishnakumar, supra note 1, at 1278 (contending that textualist jurists “at times engage in a form of backdoor purposivism, or at least speculation about legislative intent, that looks surprisingly similar to the intent speculation inherent to traditional purposivism”). ↑
  29.  See Bostock, 140 S. Ct. at 1755–56 (Alito, J., dissenting). ↑
  30.  Cf. Mitchell N. Berman, Originalism Is Bunk, 84 N.Y.U. L. Rev. 1, 8 (2009) (“[O]riginalism . . . is not merely false but pernicious as well.”). ↑
  31.  See Henry M. Hart, Jr. & Albert M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law 1377–80 (William N. Eskridge, Jr. & Philip P. Frickey eds., 1994). ↑
  32.  See William N. Eskridge, Jr., Dynamic Statutory Interpretation 55–56 (1994). ↑
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