Volume 111

An Alternative to Constraining Judges with Constitutional Theories: The Internal Goods Approach

Concerns about judges using their own personal moral beliefs in deciding cases, the difficulty in weighing competing moral principles in America’s liberal and pluralist society, and concerns about judges reaching an opinion under only the guise of principled reasoning all motivate constitutional theories that “constrain” judges. Under a “constraint approach,” constitutional theories try to limit the appropriate set of outcomes a judge may reach, the appropriate justifications judges may use in reaching a decision, or both. By drawing on the works of Alasdair MacIntyre and Ronald Dworkin, this Note introduces an alternative solution to resolving those problems—the “internal goods approach.” Under the internal goods approach, success in judging is measured by the extent to which judges prioritize “internal goods.” Purposefully described at a high level of generality, a judge prioritizing internal goods engages in legal reasoning and examines and applies principles required by the institutional nature of law when confronted with difficult cases. A critical requirement for this approach to respond to the aforementioned concerns motivating constraint is that a judge exercises judicial virtues. This Note argues that not only does the constraint approach not resolve these concerns, but that the internal goods approach better resolves them. And rather than merely criticizing an outcome as “activist,” the internal goods approach provides a more meaningful basis upon which to evaluate constitutional theories by evaluating their account of the internal goods. This Note also provides a detailed account of judicial virtues which serve as a concrete and practical basis for evaluating judges.

Introduction

In Washington v. Glucksberg, the United States Supreme Court considered whether “Washington’s prohibition against ‘caus[ing]’ or ‘aid[ing]’ a suicide offends the Fourteenth Amendment to the United States Constitution.”1 1.521 U.S. 702, 705–06 (1997) (alterations in original).Show MoreThe Court, in reaching its conclusion that it does not,2 2.Id. at 706.Show Moreoutlined a framework for answering that question. This framework requires a “‘careful description’ of the asserted fundamental liberty interest”3 3.Id. at 721 (quoting Reno v. Flores, 507 U.S. 292, 302 (1993)).Show Moreand also considers whether the asserted rights are “objectively[] ‘deeply rooted in this Nation’s history and tradition.’”4 4.Id. at 720–21 (quoting Moore v. City of East Cleveland, 431 U.S. 494, 503 (1977) (plurality opinion)) (citing Snyder v. Massachusetts, 291 U.S. 97, 105 (1934)).Show More

The Glucksberg majority characterized this methodology as “restrained.”5 5.Id. at 721.Show MoreImportantly, the constraining nature of this methodology was described as an advantage. By constraining judges to examine only deeply rooted traditions and history, the methodology “rein[s] in” the judge’s “subjective elements,” and judges can avoid the “complex balancing of competing interests in every case.”6 6.Id. at 722.Show MoreThis interest in constraint is not limited to Glucksberg; rather, it represents a core focus of judges,7 7.See, e.g., Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 Ind. L.J. 1, 3 (1971).Show More academics,8 8.Craig Green, An Intellectual History of Judicial Activism, 58 Emory L.J. 1195, 1197 n.1 (2009) (“[T]he terms ‘judicial activist’ and ‘judicial activism’ appeared in 3,815 law review articles during the 1990s and in 1,817 more articles between 2000 and 2004.”).Show Moreand the public.9 9.Corey Rayburn Yung, Flexing Judicial Muscle: An Empirical Study of Judicial Activism in the Federal Courts, 105 Nw. U. L. Rev. 1, 2 n.1 (2011) (“Between May 26, 2009, the day then-Judge Sotomayor was nominated to join the Court, and May 29, 2009, LexisNexis indicates there were 309 items using the term ‘judicial activism’ or variations thereof in articles about then-Judge Sotomayor.”).Show More

This Note is motivated by the question of whether the interest in constraint the Glucksberg Court had is justified: Should judges care about the constraining nature of methodologies? Particularly, this Note analyzes this question in the context of constitutional adjudication, an area where an interest in constraint is particularly of interest.10 10.Limiting the scope of analysis to constitutional questions also greatly simplifies it. Some issues specific to statutory interpretation, such as the presumption against extraterritoriality, are only tangential to the issue of judicial constraint. And other tools of statutory interpretation, like deference to administrative agencies’ interpretations, involve other complex issues outside the scope of this Note. While these canons of interpretation may implicate constitutional questions, this Note is concerned more generally with the sorts of issues raised by cases like Glucksberg.Show More

Consider a very simple example. Suppose there are two theories for interpreting the Constitution: Theory A says that the Constitution will always be interpreted against the plaintiff’s interest, and Theory B says that the Constitution will always be interpreted against the defendant’s interest. Loosely speaking, these theories will be equally constraining. We, of course, intuitively have an understanding that neither Theory A nor B is an attractive interpretive theory. But in this understanding, we appeal to standards other than the degree of constraint allowed by the theories. This simple example implicates a rich area of legal philosophy and has practical implications for how judges approach constitutional decision-making. Importantly, it raises questions about whether a less constrained Theory C can be better than a more constrained constitutional theory.

Part I of this Note critically surveys different definitions of constraint and judicial activism introduced in legal scholarship. In doing so, it should provide clarity to the rest of the arguments. I argue that constraint should not be understood as judges merely limiting judicial review, at least in the context of this Note. Rather, to implicate a more substantive area of controversy, the degree of judicial review should be just one part of the definition of constraint. Further, the question about how much constraint should matter is distinct from the debate between standard-like and rule-like approaches. A rule-like approach can still confer discretion to a judge,11 11.See infra Section I.C.Show Moreindicating that we cannot simply say that the degree to which a constitutional theory constrains a judge is a determination of how rule-like the theory is. The most helpful way to understand “constraint” is by understanding that a constraint can be justification-oriented, results-oriented, or both.

Likewise, Part II of this Note explores the different justifications for constraining judges. I begin by looking at the desire to avoid moral judgments in reaching a decision in a particular case. There are two distinct concerns here. First, there is good reason to constrain judges from imposing their own personal moral beliefs on decisions in disregard for constitutional principles. Second, there may be good reasons to prevent judges from having to weigh competing moral principles when deciding cases given the difficulty of resolving those moral debates. I will also introduce, by way of example of instrumentalist judges, the concern that judges can be motivated by reaching an outcome that they personally desire under the guise of principled reasoning. By identifying these concerns, we can ask whether constraint imposed by a constitutional theory is in fact a good means to resolve them.

Part III of this Note introduces an alternative to the constraint model for guiding judging. Drawing on the works of Professors Ronald Dworkin and Alasdair MacIntyre, I argue that judging itself can be conceptualized as a “practice” with “external goods” and “internal goods.” While I later describe what these concepts mean in more detail, an introduction here is helpful. Judging as a practice means that judges can evaluate their success at judging based on internal institutional standards, or in MacIntyre’s words, internal goods. MacIntyre’s chess analogy provides a helpful introduction to the definition of internal goods.12 12.This example comes from Alasdair MacIntyre, After Virtue: A Study in Moral Theory 188–89 (Univ. of Notre Dame Press 3d ed. 2007) (1981).Show MoreConsider a child playing chess who does not particularly enjoy it, but whose teacher rewards them with candy for playing. That child certainly values chess, as they get candy for playing. But, given their recent entry into the world of chess and the fact that they are motivated by the candy, the child has no appreciation for flawlessly pulling off a particular chess strategy or gaining a greater understanding of chess strategy. Here, an external good of chess is the candy reward because while the child can get candy from playing chess, they can also get candy from their violin teacher or their parents. An internal good of the game of chess—flawlessly pulling off a particular chess strategy, for example—is different, as one cannot obtain that from anything other than playing chess.

This Note argues that, like chess, judging is a practice with internal and external goods relevant to the context of judging. I purposefully define these internal goods loosely and describe broadly how a judge may practically implement these standards. Throughout the rest of this Note, I refer to this alternative model as the “internal goods approach,” in contrast to the “constraint approach.”13 13.The constraint approach simply tells judges to conform all their decision-making to the constraint imposed by their constitutional theory. For an example, see the discussion of originalism in Section I.B, infra.Show MoreUnlike Ronald Dworkin’s related account, I introduce an account of virtue ethics and relate it to the practice of judging. Virtue ethics, a concept that is inherently linked to “practices” according to Alasdair MacIntyre, has been an area of great interest to legal scholars. The discussion of virtues not only provides a complete theoretical account to the internal goods approach, but it also introduces concrete and practical ways for judges to implement the internal goods approach. By introducing the internal goods approach, I hope to contribute a useful theoretical model for understanding the act of judging to the field of legal scholarship.14 14.Scholars have applied MacIntyre’s ideas of practices and internal goods to different contexts. See, e.g., Mark Retter, Internal Goods to Legal Practice: Reclaiming Fuller with MacIntyre, 4 U. Coll. London J.L. & Juris. 1, 8–10 (2015) (discussing MacIntyre in the context of Professor Lon L. Fuller’s attack on legal positivism). See generally Howard Lesnick, The Practice of Teaching, the Practice of Law: What Does It Mean to Practice Responsibly?, 29 Pace L. Rev. 29 (2008) (introducing MacIntyre’s concepts to lawyering and legal education); Matthew Sinnicks, Practices, Governance, and Politics: Applying MacIntyre’s Ethics to Business, 24 Bus. Ethics Q. 229 (2014) (questioning whether MacIntyre’s work can be applied to corporate governance).Show More

Part IV of this Note then compares these two approaches and concludes that the internal goods approach is superior to the constraint approach based on the concerns I outline in Part II. The first set of arguments deals with the constraint approach alone. The constraint approach does not minimize the concerns outlined earlier because difficult normative and moral questions are necessary for both deciding between theories of constraint and justifying the constraint itself. Further, at least in some cases, relying on the constraint approach could lead judges astray by failing to consider the institutional rights described in Part III. While both the internal goods and the constraint approaches still face the problem of dealing with difficult and highly contestable moral debates, the internal goods approach minimizes this concern. This is true even though there is only a “thin account” of the internal goods of judging.15 15.Describing the internal goods approach as a “thin account” means that the internal goods approach can apply to judges irrespective of the substantive details of their constitutional theory. For example, a judge may think that post-ratification practices are particularly probative of the meaning of constitutional provisions while another judge disagrees. A “thin account” of internal goods means that both judges can operate under the internal goods approach even though they disagree substantively about certain aspects of how to interpret the Constitution. Cf. Lawrence B. Solum, Virtue Jurisprudence: A Virtue-Centred Theory of Judging, 34 Metaphilosophy 178, 183 (2003) [hereinafter Solum, Virtue Jurisprudence] (using the term “thin” in a similar manner).Show More

In justifying these conclusions, I begin by walking through how a judge following the internal goods approach decides a difficult case. The decision-making process a judge engages in following this approach demonstrates the benefits of introducing the ideas of practices, internal goods, and virtues. The internal goods approach provides a more meaningful way to evaluate judging than relying on constraint alone. Importantly, even though the process of ascertaining the internal goods of judging is contestable and difficult, the virtues provide a sort of procedural check to ensure that judges are properly engaging in this inquiry. Finally, the internal goods approach better accounts for instrumentalist judging concerns than the constraint approach does.

  1.  521 U.S. 702, 705–06 (1997) (alterations in original). ↑
  2.  Id. at 706. ↑
  3.  Id. at 721 (quoting Reno v. Flores, 507 U.S. 292, 302 (1993)). ↑
  4.  Id. at 720–21 (quoting Moore v. City of East Cleveland, 431 U.S. 494, 503 (1977) (plurality opinion)) (citing Snyder v. Massachusetts, 291 U.S. 97, 105 (1934)). ↑
  5.  Id. at 721. ↑
  6.  Id. at 722. ↑
  7.  See, e.g., Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 Ind. L.J. 1, 3 (1971). ↑
  8.  Craig Green, An Intellectual History of Judicial Activism, 58 Emory L.J. 1195, 1197 n.1 (2009) (“[T]he terms ‘judicial activist’ and ‘judicial activism’ appeared in 3,815 law review articles during the 1990s and in 1,817 more articles between 2000 and 2004.”). ↑
  9.  Corey Rayburn Yung, Flexing Judicial Muscle: An Empirical Study of Judicial Activism in the Federal Courts, 105 Nw. U. L. Rev. 1, 2 n.1 (2011) (“Between May 26, 2009, the day then-Judge Sotomayor was nominated to join the Court, and May 29, 2009, LexisNexis indicates there were 309 items using the term ‘judicial activism’ or variations thereof in articles about then-Judge Sotomayor.”). ↑
  10.  Limiting the scope of analysis to constitutional questions also greatly simplifies it. Some issues specific to statutory interpretation, such as the presumption against extraterritoriality, are only tangential to the issue of judicial constraint. And other tools of statutory interpretation, like deference to administrative agencies’ interpretations, involve other complex issues outside the scope of this Note. While these canons of interpretation may implicate constitutional questions, this Note is concerned more generally with the sorts of issues raised by cases like Glucksberg. ↑
  11.  See infra Section I.C. ↑
  12.  This example comes from Alasdair MacIntyre, After Virtue: A Study in Moral Theory 188–89 (Univ. of Notre Dame Press 3d ed. 2007) (1981). ↑
  13.  The constraint approach simply tells judges to conform all their decision-making to the constraint imposed by their constitutional theory. For an example, see the discussion of originalism in Section I.B, infra. ↑
  14.  Scholars have applied MacIntyre’s ideas of practices and internal goods to different contexts. See, e.g., Mark Retter, Internal Goods to Legal Practice: Reclaiming Fuller with MacIntyre, 4 U. Coll. London J.L. & Juris. 1, 8–10 (2015) (discussing MacIntyre in the context of Professor Lon L. Fuller’s attack on legal positivism). See generally Howard Lesnick, The Practice of Teaching, the Practice of Law: What Does It Mean to Practice Responsibly?, 29 Pace L. Rev. 29 (2008) (introducing MacIntyre’s concepts to lawyering and legal education); Matthew Sinnicks, Practices, Governance, and Politics: Applying MacIntyre’s Ethics to Business, 24 Bus. Ethics Q. 229 (2014) (questioning whether MacIntyre’s work can be applied to corporate governance). ↑

  15.  Describing the internal goods approach as a “thin account” means that the internal goods approach can apply to judges irrespective of the substantive details of their constitutional theory. For example, a judge may think that post-ratification practices are particularly probative of the meaning of constitutional provisions while another judge disagrees. A “thin account” of internal goods means that both judges can operate under the internal goods approach even though they disagree substantively about certain aspects of how to interpret the Constitution. Cf. Lawrence B. Solum, Virtue Jurisprudence: A Virtue-Centred Theory of Judging, 34 Metaphilosophy 178, 183 (2003) [hereinafter Solum, Virtue Jurisprudence] (using the term “thin” in a similar manner). ↑

Abortion’s New Criminalization—A History-and-Tradition Right to Health-Care Access After Dobbs

Since Dobbs v. Jackson Women’s Health Organization reversed Roe v. Wade as contrary to the nation’s history and traditions, efforts to ban abortion appear as calls for a return to tradition. But criminalization after Dobbs is not a return to the past; it is a new regime, in certain respects less restrictive, and in others far more so. Today, states criminalize access to urgently needed health care for pregnant patients in ways they never have before.

Are there constitutional limits on abortion bans that restrict access to health- or life-preserving care? In Dobbs, the Court granted certiorari “to resolve the question whether ‘all pre-viability prohibitions on elective abortions are unconstitutional.’” This Article shows that Dobbs’s account of why states can criminalize “elective abortions” in turn suggests the unconstitutionality of bans that break with past practice in criminalizing terminations that are part of urgently needed health care under federal and state law.

We show that the nation has long had a tradition of exempting critical forms of health care from criminalization, that this tradition extended to abortion law, and that it was expressed in the many state laws cited in Dobbs’s appendices, as well as in the text and case law of the Comstock Act. We show that this tradition extended across jurisdictions and over time. We demonstrate that under Dobbs and Washington v. Glucksberg, such a tradition can guide interpretation of the Constitution’s liberty guarantees, even if access was not historically termed a right. We show that courts in states with abortion bans often view history-and-tradition analysis of this kind as faithful to Dobbs and have begun to employ it under their own state constitutions.

Finally, we defend our reading of Dobbs and substantive-due-process law against an originalist reading of Dobbs, advanced by Professor Stephen Sachs, asserting that the Fourteenth Amendment only protects rights historically recognized as such at the time of the Fourteenth Amendment’s ratification. We argue that Sachs’s originalist reading of the Fourteenth Amendment conflicts with important aspects of Glucksberg and Dobbs and, in the process, imposes constitutionally offensive status inequalities on the Constitution’s liberty guarantees.

Addressing these questions, we suggest, contributes to the broader debate about how history and tradition can guide constitutional inquiry. By no means are history and tradition the sole ground on which Americans can assert the rights in question, yet they are a critical ground—a reminder that criminalizing urgently needed health care is not what Americans traditionally do, even to pregnant women.

Introduction

In Dobbs v. Jackson Women’s Health Organization, both the majority and Chief Justice John Roberts’s concurrence explained that the Court was resolving “the question whether ‘all pre-viability prohibitions on elective abortions are unconstitutional.’”1 1.142 S. Ct. 2228, 2244 (2022); see also id. at 2310 (Roberts, C.J., concurring) (identifying the same question presented).Show MoreThe Court’s decision allowing states to criminalize what the Court termed “elective abortions” on grounds of history and tradition gives rise to a new question: Under Dobbs, might abortion bans that deny access to urgently needed medical care in cases of threats to life or health violate liberty guarantees of federal or state constitutions?

This Article shows that Dobbs’s account of why states can criminalize “elective abortions” in turn suggests that bans that break with past practice in criminalizing urgently needed health care may be unconstitutional under federal and state law. We uncover a significant body of evidence showing that the nation has long had a tradition of exempting critical forms of health care from criminalization that extended to abortion law and was expressed in the many abortion laws cited in Dobbs’s appendices, as well as in the text and case law of the Comstock Act.2 2.See infra Sections II.A–B.Show MoreWe identify entrenched customary understandings embodied in statutory exceptions, in medical judgments, and in judicial interpretations that often afforded doctors discretion to protect health and life in accordance with professional norms and good faith.3 3.See infra Sections II.A–B.Show MoreWe demonstrate that these thick customary understandings involved much more than legislative inaction4 4.See infra Sections II.A–B.Show More: they were self-conscious constraints on state action that were reiterated in different bodies of law across institutions and over time.5 5.See infra Sections II.A–B.Show MoreThese customary norms allowed judges, prosecutors, and doctors to coordinate before our modern practices of rights-claiming were established,6 6.See infra Sections II.A–B.Show Morewhen not all constraints on legislative power came in the form of judicial enforcement of fundamental rights,7 7.Cf. William Baude, Jud Campbell & Stephen E. Sachs, General Law and the Fourteenth Amendment, 76 Stan. L. Rev. 1185, 1193–1212 (2024) [hereinafter Baude, Campbell & Sachs, General Law] (describing limits imposed on state power, including police-power limitations and “more determinate limits, usually grounded in customary law”).Show Moreand when rights were severely circumscribed by forms of status our Constitution no longer recognizes.8 8.See infra notes 369, 373–75 and accompanying text.Show More

As we show, far from returning to the past, the criminalization regime emerging after Dobbs is in critical ways far more punitive.9 9.See infra Section I.A.Show MoreCriminalization has always disproportionately burdened the poor and marginalized, even as these burdens change shape.10 10.See infra notes 68–71 and accompanying text.Show MoreToday, early diagnosis of pregnancy, telehealth, and safe and effective abortion medication mitigate the impact of criminalization on some, at least in the early weeks of pregnancy,11 11.See Jolynn Dellinger & Stephanie K. Pell, The Criminalization of Abortion and Surveillance of Women in a Post-Dobbs World, Brookings Inst. (Apr. 18, 2024), https://www‌.brookings.edu/articles/the-criminalization-of-abortion-and-surveillance-of-women-in-a-post‌-dobbs-world/ [https://perma.cc/B3M2-RXND].Show Morewhile harsh criminal sanctions threaten access to health care for those carrying pregnancies to term,12 12.See infra Section I.A.Show Moreparticularly for women of color, who face a higher risk of maternal mortality and morbidity because of health harms related to racism, poverty, and a lack of access to quality (or indeed any) health care.13 13.See, e.g., Khiara M. Bridges, Racial Disparities in Maternal Mortality, 95 N.Y.U. L. Rev. 1229, 1257–61 (2020) (surveying reasons for racial disparities in maternal mortality). For more on the disparate effects of Dobbs, see infra notes 70–71 and accompanying textShow More

In fact, the criminal law regime emerging after Dobbs prevents doctors from addressing urgent health needs of pregnant patients in ways that bans before Roe v. Wade did not.14 14.See infra notes 60–63 and accompanying text.Show MoreThese harms are concentrated in the South and Midwest,15 15.Allison McCann & Amy Schoenfeld Walker, Tracking Abortion Bans Across the Country, N.Y. Times, https://www.nytimes.com/interactive/2024/us/abortion-laws-roe-v-wa‌de.html (last updated Mar. 6, 2025, 5:48 PM).Show Morebut may not remain there. Federal law could nationalize them, and conscience claims could bring them inside abortion-rights-protecting states.16 16.On the potential impacts of expanding conscience provisions, see Reva Siegel & Mary Ziegler, Conservatives Are Getting Comfortable Talking Openly About a National Abortion Ban, Slate (Mar. 28, 2024, 10:00 AM), https://slate.com/news-and-politics/2024/03/conservat‌ives-national-abortion-ban-supreme-court-comstock-plan.html [https://perma.cc/74XU-QJ‌HX]. For further discussion of the Court’s apparent embrace of a broad understanding of conscience protections, see infra text accompanying notes 129–34.Show MoreStates may continue to enforce laws with life exceptions far harsher than those in place before Roe.17 17.See infra Section III.C.Show MoreAnd the Trump Administration has recently dropped the Biden Administration’s lawsuit arguing that the Emergency Medical Treatment and Labor Act (“EMTALA”) guarantees access to abortion in certain medical emergencies.18 18.Alice Miranda Ollstein, Trump Admin Moves to Drop Fight Over Emergency Abortions, Reversing Biden Admin Stance, Politico (Mar. 4, 2025, 7:29 PM), https://www.politico.com/n‌ews/2025/03/04/trump-emergency-abortions-00211399 [https://perma.cc/DT4K-F8AD]. This is only the first step the Trump Administration might take on the issue. See Laurie Sobel et al., How Pending Health-Related Lawsuits Could Be Impacted by the Incoming Trump Administration, KFF (Nov. 25, 2024), https://www.kff.org/medicare/issue-brief/how-pending‌-health-related-lawsuits-could-be-impacted-by-the-incoming-trump-administration/ [https://p‌erma.cc/F7A8-82RM] (noting that “Project 2025 authors call for the reversal of the Biden administration’s EMTALA guidance, which the new Trump administration could do right away, and withdrawal of federal lawsuits challenging state abortion bans without health exceptions”).Show MoreThe Trump Administration (or litigants) may further seek to break from longstanding practice and judicial precedent by enforcing the Comstock Act as a de facto no-exceptions national abortion ban.19 19.See infra note 125 and accompanying text; Chantelle Lee, The Powers Trump’s Nominees Will Have Over Abortion, Time (Jan. 22, 2025, 1:37 PM), https://time.com/7209202/donald-trump-cabinet-abortion/ [https://perma.cc/ZY4L-LVAQ].Show MoreFacing such threats, pregnant patients and their lawyers are beginning to look to the federal and state constitutions to assert a right to access care in cases of threats to life or health.20 20.See infra Section III.C (discussing cases under state constitutions); infra notes 244–45 and accompanying text (discussing Seyb v. Members of the Idaho Board of Medicine, the first case post-Dobbs to bring a challenge under the federal Constitution).Show More

We demonstrate that under Dobbs and Washington v. Glucksberg,21 21.521 U.S. 702 (1997).Show Morethe tradition we identify can guide interpretation of the Constitution’s liberty guarantees to protect access to urgently needed health care against criminalization, even if access was not historically understood as a right.22 22.See infra Sections III.A–B.Show MoreWe show that courts in states with abortion bans often view history-and-tradition analysis of this kind as faithful to Dobbs, and have begun to employ it under their own state constitutions to protect urgently needed health care from criminalization.23 23.See infra Section III.C.Show More

Finally, we defend our history-and-tradition analysis under Dobbs and Glucksberg against an originalist account of the cases presented by Professor Stephen Sachs in response to Dobbs’s originalist critics.24 24.Stephen E. Sachs, Dobbs and the Originalists, 47 Harv. J.L. & Pub. Pol’y 539, 540–43 (2024) [hereinafter Sachs, Dobbs]. For an endorsement of this view, see Ed Whelan, On Justice Barrett and Originalism, Nat’l Rev. (June 20, 2024, 3:25 PM), https://www.nationalrev‌iew.com/bench-memos/on-justice-barrett-and-originalism [https://perma.cc/G4VV-2Q8E].Show MoreSachs offers a reading of Dobbs and Glucksberg that he contends is compatible with original-law originalism, his positivist account of what our constitutional law requires. We evaluate his positivist account and find it to turn on unstated normative criteria. Sachs’s reading, we conclude, conflicts with important aspects of Dobbs and Glucksberg and, in the process, imposes constitutionally offensive status inequalities on the Constitution’s liberty guarantees.25 25.See infra Section III.D.Show More

Of course, the history-and-tradition framework is not the only or best way to analyze these questions as a matter of state or federal law. A challenge to abortion bans written or enforced in such a way as to deny pregnant persons access to urgently needed medical care could appeal to liberty interests in bodily autonomy and family decision-making—understanding these traditionally protected forms of freedom at a higher level of generality—as Roe and Planned Parenthood of Southeastern Pennsylvania v. Casey did.26 26.See, e.g., Reva B. Siegel, The History of History and Tradition: The Roots of Dobbs’s Method (and Originalism) in the Defense of Segregation, 133 Yale L.J.F. 99, 105, 110 (2023) [hereinafter Siegel, History of History and Tradition] (“Roe reasoned about the Fourteenth Amendment’s liberty guarantee as a commitment whose meaning can be derived from the nation’s history and traditions as those traditions evolve in history.”).Show MoreAmbiguously worded exceptions in abortion bans that chill or obstruct access to urgently needed medical care can be challenged on grounds of vagueness.27 27.See, e.g., David S. Cohen & Greer Donley, From Medical Exceptions to Reproductive Freedom, 124 Mich. L. Rev. (forthcoming 2025) (manuscript at 26–35, 37–41), https://papers‌.ssrn.com/sol3/papers.cfm?abstract_id=5124948 [https://perma.cc/J3TH-AJTJ] (arguing that pregnancy-complication cases illustrate that exceptions are both impermissibly vague and religiously discriminatory); Maxine Eichner, Mara Buchbinder, Abby Schultz, Cambray Smith & Amy Bryant, The Inevitable Vagueness of Medical Exceptions to Abortion Bans, 15 U.C. Irvine L. Rev. (forthcoming 2025) (manuscript at 14–22, 35–47, 52–53) (on file with authors) (highlighting uncertainties in applying medical exceptions to abortion bans due to ambiguities that render such laws unconstitutionally vague under the void for vagueness doctrine and proposing a “least-vague” exception to provide clear guidance).Show MoreOr state action of this kind can be challenged as denying the right to life.28 28.See B. Jessie Hill, Medical Authority and the Right to Life, 104 B.U. L. Rev. Online 67, 76–77 (2024) (challenging abortion bans “as incompatible with individuals’ constitutional right to life”—and asserting that a broad understanding of life could inform the understanding of existing exceptions, in keeping with the more liberal interpretation typical in the nineteenth century).Show MoreClaims might be based on the Privileges and Immunities Clause;29 29.See infra notes 382–83 and accompanying text.Show Moreasserted as challenges to involuntary servitude under the Thirteenth Amendment;30 30.See, e.g., Andrew Koppelman, Originalism, Abortion, and the Thirteenth Amendment, 112 Colum. L. Rev. 1917, 1918 (2012) (arguing that the “Thirteenth Amendment prohibits a ban on abortion because such a ban would do to women what slavery did to the women who were enslaved: compel them to bear children against their will”); Michele Goodwin, Opportunistic Originalism: Dobbs v. Jackson Women’s Health Organization, 2022 Sup. Ct. Rev. 111, 166–80 (discussing the relevance of a Thirteenth Amendment claim and faulting Dobbs for failing to do “any serious accounting of the Framers’ and ratifiers’ thinking, objectives, strategies, and plans”).Show Moreor advanced as a challenge to stereotyping under equal protection.31 31.See, e.g., Reva B. Siegel, Serena Mayeri & Melissa Murray, Equal Protection in Dobbs and Beyond: How States Protect Life Inside and Outside of the Abortion Context, 43 Colum. J. Gender & L. 67, 91–95 (2022) (detailing arguments based on sex stereotyping and the determination of the state to “rely on carceral means to protect life,” and contending that “equality arguments are of growing significance in vindicating claims of reproductive justice”). Equal protection arguments have a long history in the context of reproductive rights and justice, even in the pre-Roe period. For examples, see Melissa Murray, Race-ing Roe: Reproductive Justice, Racial Justice, and the Battle for Roe v. Wade, 134 Harv. L. Rev. 2025, 2044–45, 2088–89 (2021); Reva B. Siegel, Roe’s Roots: The Women’s Rights Claims That Engendered Roe, 90 B.U. L. Rev. 1875, 1889–91 (2010); Memorandum & Order on Plaintiffs’ Motion for Temporary Injunction at 22–23, Blackmon v. State, No. 23-1196-IV(I) (Tenn. Ch. Oct. 17, 2024) (finding that pregnant plaintiffs challenging access to emergency medical care under the Medical Necessity Exception of the Tennessee abortion ban “have shown they are ‘similarly situated’ to non-pregnant women for purposes of their equal protection challenge” under the state’s constitution).Show More

Even so, there are critically important goods served in analyzing state action obstructing urgently needed reproductive health care through a history-and-tradition lens. We learn that at a time when American women were not recognized as having many rights, doctors, lawmakers, prosecutors, and judges coordinated to limit abortion bans and permit physicians to protect the lives and health of pregnant patients. This widespread and enduring customary practice shows that access to urgently needed health care, including abortion, is deeply rooted in our nation’s history and traditions, even on Dobbs’s own terms.

  1.  142 S. Ct. 2228, 2244 (2022); see also id. at 2310 (Roberts, C.J., concurring) (identifying the same question presented). ↑
  2.  See infra Sections II.A–B. ↑
  3.  See infra Sections II.A–B. ↑
  4.  See infra Sections II.A–B. ↑
  5.  See infra Sections II.A–B. ↑
  6.  See infra Sections II.A–B. ↑
  7.  Cf. William Baude, Jud Campbell & Stephen E. Sachs, General Law and the Fourteenth Amendment, 76 Stan. L. Rev. 1185, 1193–1212 (2024) [hereinafter Baude, Campbell & Sachs, General Law] (describing limits imposed on state power, including police-power limitations and “more determinate limits, usually grounded in customary law”). ↑
  8.  See infra notes 369, 373–75 and accompanying text. ↑
  9.  See infra Section I.A. ↑
  10.  See infra notes 68–71 and accompanying text. ↑
  11.  See Jolynn Dellinger & Stephanie K. Pell, The Criminalization of Abortion and Surveillance of Women in a Post-Dobbs World, Brookings Inst. (Apr. 18, 2024), https://www‌.brookings.edu/articles/the-criminalization-of-abortion-and-surveillance-of-women-in-a-post‌-dobbs-world/ [https://perma.cc/B3M2-RXND]. ↑
  12.  See infra Section I.A. ↑
  13.  See, e.g., Khiara M. Bridges, Racial Disparities in Maternal Mortality, 95 N.Y.U. L. Rev. 1229, 1257–61 (2020) (surveying reasons for racial disparities in maternal mortality). For more on the disparate effects of Dobbs, see infra notes 70–71 and accompanying text. ↑
  14.  See infra notes 60–63 and accompanying text. ↑
  15.  Allison McCann & Amy Schoenfeld Walker, Tracking Abortion Bans Across the Country, N.Y. Times, https://www.nytimes.com/interactive/2024/us/abortion-laws-roe-v-wa‌de.html (last updated Mar. 6, 2025, 5:48 PM). ↑
  16.  On the potential impacts of expanding conscience provisions, see Reva Siegel & Mary Ziegler, Conservatives Are Getting Comfortable Talking Openly About a National Abortion Ban, Slate (Mar. 28, 2024, 10:00 AM), https://slate.com/news-and-politics/2024/03/conservat‌ives-national-abortion-ban-supreme-court-comstock-plan.html [https://perma.cc/74XU-QJ‌HX]. For further discussion of the Court’s apparent embrace of a broad understanding of conscience protections, see infra text accompanying notes 129–34. ↑
  17.  See infra Section III.C. ↑
  18.  Alice Miranda Ollstein, Trump Admin Moves to Drop Fight Over Emergency Abortions, Reversing Biden Admin Stance, Politico (Mar. 4, 2025, 7:29 PM), https://www.politico.com/n‌ews/2025/03/04/trump-emergency-abortions-00211399 [https://perma.cc/DT4K-F8AD]. This is only the first step the Trump Administration might take on the issue. See Laurie Sobel et al., How Pending Health-Related Lawsuits Could Be Impacted by the Incoming Trump Administration, KFF (Nov. 25, 2024), https://www.kff.org/medicare/issue-brief/how-pending‌-health-related-lawsuits-could-be-impacted-by-the-incoming-trump-administration/ [https://p‌erma.cc/F7A8-82RM] (noting that “Project 2025 authors call for the reversal of the Biden administration’s EMTALA guidance, which the new Trump administration could do right away, and withdrawal of federal lawsuits challenging state abortion bans without health exceptions”). ↑
  19.  See infra note 125 and accompanying text; Chantelle Lee, The Powers Trump’s Nominees Will Have Over Abortion, Time (Jan. 22, 2025, 1:37 PM), https://time.com/7209202/donald-trump-cabinet-abortion/ [https://perma.cc/ZY4L-LVAQ]. ↑
  20.  See infra Section III.C (discussing cases under state constitutions); infra notes 244–45 and accompanying text (discussing Seyb v. Members of the Idaho Board of Medicine, the first case post-Dobbs to bring a challenge under the federal Constitution). ↑
  21.  521 U.S. 702 (1997). ↑
  22.  See infra Sections III.A–B. ↑
  23.  See infra Section III.C. ↑
  24.  Stephen E. Sachs, Dobbs and the Originalists, 47 Harv. J.L. & Pub. Pol’y 539, 540–43 (2024) [hereinafter Sachs, Dobbs]. For an endorsement of this view, see Ed Whelan, On Justice Barrett and Originalism, Nat’l Rev. (June 20, 2024, 3:25 PM), https://www.nationalrev‌iew.com/bench-memos/on-justice-barrett-and-originalism [https://perma.cc/G4VV-2Q8E]. ↑
  25.  See infra Section III.D. ↑
  26.  See, e.g., Reva B. Siegel, The History of History and Tradition: The Roots of Dobbs’s Method (and Originalism) in the Defense of Segregation, 133 Yale L.J.F. 99, 105, 110 (2023) [hereinafter Siegel, History of History and Tradition] (“Roe reasoned about the Fourteenth Amendment’s liberty guarantee as a commitment whose meaning can be derived from the nation’s history and traditions as those traditions evolve in history.”). ↑
  27.  See, e.g., David S. Cohen & Greer Donley, From Medical Exceptions to Reproductive Freedom, 124 Mich. L. Rev. (forthcoming 2025) (manuscript at 26–35, 37–41), https://papers‌.ssrn.com/sol3/papers.cfm?abstract_id=5124948 [https://perma.cc/J3TH-AJTJ] (arguing that pregnancy-complication cases illustrate that exceptions are both impermissibly vague and religiously discriminatory); Maxine Eichner, Mara Buchbinder, Abby Schultz, Cambray Smith & Amy Bryant, The Inevitable Vagueness of Medical Exceptions to Abortion Bans, 15 U.C. Irvine L. Rev. (forthcoming 2025) (manuscript at 14–22, 35–47, 52–53) (on file with authors) (highlighting uncertainties in applying medical exceptions to abortion bans due to ambiguities that render such laws unconstitutionally vague under the void for vagueness doctrine and proposing a “least-vague” exception to provide clear guidance). ↑
  28.  See B. Jessie Hill, Medical Authority and the Right to Life, 104 B.U. L. Rev. Online 67, 76–77 (2024) (challenging abortion bans “as incompatible with individuals’ constitutional right to life”—and asserting that a broad understanding of life could inform the understanding of existing exceptions, in keeping with the more liberal interpretation typical in the nineteenth century). ↑
  29.  See infra notes 382–83 and accompanying text. ↑
  30.  See, e.g., Andrew Koppelman, Originalism, Abortion, and the Thirteenth Amendment, 112 Colum. L. Rev. 1917, 1918 (2012) (arguing that the “Thirteenth Amendment prohibits a ban on abortion because such a ban would do to women what slavery did to the women who were enslaved: compel them to bear children against their will”); Michele Goodwin, Opportunistic Originalism: Dobbs v. Jackson Women’s Health Organization, 2022 Sup. Ct. Rev. 111, 166–80 (discussing the relevance of a Thirteenth Amendment claim and faulting Dobbs for failing to do “any serious accounting of the Framers’ and ratifiers’ thinking, objectives, strategies, and plans”). ↑

  31.  See, e.g., Reva B. Siegel, Serena Mayeri & Melissa Murray, Equal Protection in Dobbs and Beyond: How States Protect Life Inside and Outside of the Abortion Context, 43 Colum. J. Gender & L. 67, 91–95 (2022) (detailing arguments based on sex stereotyping and the determination of the state to “rely on carceral means to protect life,” and contending that “equality arguments are of growing significance in vindicating claims of reproductive justice”). Equal protection arguments have a long history in the context of reproductive rights and justice, even in the pre-Roe period. For examples, see Melissa Murray, Race-ing Roe: Reproductive Justice, Racial Justice, and the Battle for Roe v. Wade, 134 Harv. L. Rev. 2025, 2044–45, 2088–89 (2021); Reva B. Siegel, Roe’s Roots: The Women’s Rights Claims That Engendered Roe, 90 B.U. L. Rev. 1875, 1889–91 (2010); Memorandum & Order on Plaintiffs’ Motion for Temporary Injunction at 22–23, Blackmon v. State, No. 23-1196-IV(I) (Tenn. Ch. Oct. 17, 2024) (finding that pregnant plaintiffs challenging access to emergency medical care under the Medical Necessity Exception of the Tennessee abortion ban “have shown they are ‘similarly situated’ to non-pregnant women for purposes of their equal protection challenge” under the state’s constitution). ↑

The Radical Fair Housing Act

This Article uncovers the radical logic at the core of the Fair Housing Act (“FHA”). It is a law which can question and remake the underlying structure of housing markets, not just police individual transactions within those markets.

The FHA is conventionally held to use the same understanding of “discrimination” as the Civil Rights Act’s prohibition on employment discrimination. But it does not. The law of employment discrimination limits its scrutiny to the matching of people to jobs; it takes both the jobs on offer and people’s qualifications as given. The Fair Housing Act, in contrast, also scrutinizes markets as a whole. It asks whether the set of housing opportunities available has been constructed discriminatorily, and it asks whether households can secure the qualifications necessary to acquire better housing. The FHA, this Article shows, offers its own distinctive theory of antidiscrimination.

This structural understanding of discrimination is not always—or even usually—vindicated in fair housing law, but neither is it some peripheral feature, limited to outlier cases or special provisions. It has been hidden in plain sight: visible in archetypal fair housing cases, which have been successful since the FHA’s enactment and are brought under the FHA’s core antidiscrimination provisions. Moreover, the FHA’s market-level analysis is firmly rooted in the statute’s text and purpose. It is an intentional congressional response to the particular challenges of tackling housing discrimination. This Article identifies the FHA’s radical approach, as well as the statutory mechanisms through which that approach is operationalized. In so doing, it also re-situates the FHA within the larger landscape of civil rights law.

For all the Fair Housing Act’s many weaknesses, for all its ineffectiveness in practice, the Act has always had radical ambitions. If those ambitions are recognized, they can, perhaps, be built upon.

Introduction

The standard narrative of the Fair Housing Act (“FHA” or “the Act”) is of timidity and failure. The Act was hobbled from the start by intentionally toothless enforcement provisions.1 1.Jonathan Zasloff, The Secret History of the Fair Housing Act, 53 Harv. J. on Legis. 247, 248–49 (2016) [hereinafter Zasloff, Secret History] (describing conventional wisdom that the FHA was intentionally weak); Olatunde Johnson, The Last Plank: Rethinking Public and Private Power to Advance Fair Housing, 13 U. Pa. J. Const. L. 1191, 1205–07 (2011) (detailing the FHA’s original enforcement scheme).Show MoreIt was crafted primarily to overcome overt discrimination, especially against members of the middle class, leaving it incapable of achieving its more ambitious anti-segregation goals.2 2.Wendell E. Pritchett, Where Shall We Live? Class and the Limitations of Fair Housing Law, 35 Urb. Law. 399, 401 (2003).Show MoreHousing discrimination remains pervasive, and segregation appears intractable.3 3.See generally Douglas S. Massey & Nancy A. Denton, American Apartheid: Segregation and the Making of the Underclass (1993) (describing the perpetuation and harmful effects of extreme segregation).Show MoreAll of this is true, at least to some extent.4 4.But see Richard H. Sander, Yana A. Kucheva & Jonathan M. Zasloff, Moving Toward Integration: The Past and Future of Fair Housing 145–52 (2018) (providing a revisionist take on the FHA’s strength).Show More

But in cataloguing the all-too-real weaknesses of the Fair Housing Act, legal scholars have overlooked a remarkable strength. For all its flaws, the FHA contains a radical core. The FHA—unlike the employment discrimination statutes on which it is based—is committed not only to opening existing opportunities to people regardless of race, sex, or other protected status, but also to creating those opportunities. It can make more, different kinds of housing available for those who are poorly served by normative housing models. And it can protect against discrimination not just in the acquisition of housing, but in obtaining the additional qualifications needed to secure the kind of housing one wants. The Act contemplates, at least sometimes, a restructuring of housing markets, not just the policing of housing transactions. And it holds all of society, across the public and private sectors, potentially responsible for effecting that restructuring.

To be clear, this Article does not argue that the FHA could or should understand discrimination expansively. The FHA has always been understood as structural. The Act’s distinct theory of discrimination is written into the text of the statute and has been consistently implemented by courts. Nor does the Article rely on the FHA’s unique but poorly enforced mandate for governments “affirmatively to further” fair housing, a provision on which many scholars have pinned hopes for a more ambitious approach to fair housing.5 5.Johnson, supra note 1, at 1193–94; David D. Troutt, Inclusion Imagined: Fair Housing as Metropolitan Equity, 65 Buff. L. Rev. 5, 8 (2017); Heather R. Abraham, Fair Housing’s Third Act: American Tragedy or Triumph?, 39 Yale L. & Pol’y Rev. 1, 8–9 (2020).Show MoreIts focus is on the Act’s core antidiscrimination provisions. The FHA’s breadth is in its basics, not just at its frontiers.

To demonstrate the FHA’s unappreciated strength, this Article compares the Act to Title VII’s ban on employment discrimination.6 6.Throughout, this Article compares the FHA and Title VII’s treatment of discrimination on the basis of race, sex, and other protected characteristics. Each statute also has separate provisions applying a different “reasonable accommodations” standard for certain protected characteristics: religion in Title VII and disability in the FHA. 42 U.S.C. § 2000e(j); id. § 3604(f)(3)(B). Unless specified, this Article does not discuss those provisions.Show MoreCourts routinely declare fair housing to operate essentially entirely in parallel with Title VII and create most FHA standards by importing Title VII jurisprudence. Part I of this Article describes the basic relationship between the FHA and Title VII: not only their parallel construction, but also how scholars have found the FHA to nevertheless fall far short of Title VII’s efficacy. This comparison allows Title VII to serve as an analytic baseline: where the FHA goes beyond the statute that courts have deemed to be its model and that scholars have identified as more successfully transformational, the FHA’s distinctive features are made visible.

And for all that courts claim to interpret the statutes near identically, in many archetypal types of fair housing cases, the FHA takes a markedly different, more structural approach than Title VII ever allowed. For example, banks that open branches only in predominantly white neighborhoods are frequently found liable for housing discrimination; their siting decisions unfairly create a market in which white households are more likely to apply for and receive a mortgage. But no employment discrimination suit is ordinarily available against a firm that opens its branches in far-flung, predominantly white suburbs rather than transit-rich downtown locations more accessible to non-white workers.

Likewise, a local government which uses restrictive zoning to exclude lower-cost apartments or group homes for people with disabilities may violate the FHA; the Supreme Court has deemed such cases the “heartland” of disparate impact liability under the Act.7 7.Tex. Dep’t of Hous. & Cmty. Affs. v. Inclusive Cmtys. Project, Inc., 576 U.S. 519, 539 (2015).Show MoreIn these cases, fair housing requires not only equal access to a predefined set of housing opportunities, but that the proper mix of opportunities be available in the first place. But no suit is available to scrutinize a firm’s mix of job opportunities. Title VII does not ask, for example, whether a hospital has kept too much medical work reserved for physicians (sixty-five percent male) and thereby excluded nurse practitioners (eighty-five percent female).8 8.U.S. Dep’t of Health & Hum. Servs., Bureau of Health Workforce, Sex, Race, and Ethnic Diversity of U.S. Health Occupations (2011–2015), at 10 tbl.1 (2017), https://web.archive.org/‌web/20241014113124/https://bhw.hrsa.gov/sites/default/files/bureau-health-workforce/data-research/diversity-us-health-occupations.pdf#expandhttps://bhw.hrsa.gov/data-research/revie‌w-health-workforce-research [https://perma.cc/KCW5-QVAU].Show More

Finally, the FHA protects homebuyers not only from discrimination at the point of sale, but also from discrimination which denies them the qualifications needed to access certain segments of the market. Specifically, the FHA protects buyers from discrimination in acquiring a mortgage and homeowners’ insurance. But no Title VII suit is available to help workers secure the additional qualifications they need for better jobs.

As Part II of this Article explains, the Fair Housing Act takes on practices well beyond the limits of Title VII. Employment discrimination law, at its heart, governs how to match people to job opportunities. Fair housing law, under the right set of facts, can expand the set of opportunities—including, sometimes, to accommodate needs created by preexisting inequalities.

This is not to say that the FHA has had a radical effect in practice. It has not. The FHA does not always allow for the restructuring of housing markets. It usually does not. And even when it does, the Act’s other, well-appreciated limitations undermine those efforts. Since its enactment, the FHA has consistently fallen short even of its more modest ambitions, all too often leaving housing discrimination and segregation intact. Even the categories of cases highlighted in this Article have had limited effect. Most zoning provisions, for example—even those that clearly disproportionately limit opportunities for people of color or people with disabilities—have never been readily challenged as fair housing violations.9 9.See generally Jonathan Zasloff, The Price of Equality: Fair Housing, Land Use, and Disparate Impact, 48 Colum. Hum. Rts. L. Rev. 98 (2017) [hereinafter Zasloff, Price of Equality] (arguing that more zoning regulations ought to be rejected under a disparate impact theory). See also Noah M. Kazis, Fair Housing, Unfair Housing, 99 Wash. U. L. Rev. Online 1, 13–21 (2021) [hereinafter Kazis, Unfair Housing] (providing a framework for effectively scrutinizing land use regulation under the FHA’s Affirmatively Furthering Fair Housing (“AFFH”) provisions).Show MoreCourts have sometimes used causation and “directness” requirements to curtail the reach of the FHA in precisely those areas where a structural analysis might be most helpful.10 10.Jersey Heights Neighborhood Ass’n v. Glendening, 174 F.3d 180, 192 (4th Cir. 1999) (finding that the FHA did not cover a highway relocation decision because the Act “requires a closer causal link between housing and the disputed action”); Jones v. Off. of the Comptroller of the Currency, 983 F. Supp. 197, 202 (D.D.C. 1997) (declining to hold a bank regulator responsible for a lending regulation), aff’d, No. 97-5341, 1998 WL 315581 (D.C. Cir. May 12, 1998); Mich. Prot. & Advoc. Serv., Inc. v. Babin, 18 F.3d 337, 345 (6th Cir. 1994) (finding neighbors who fundraised to outbid a group home not liable because their actions did not directly make housing unavailable).Show MoreRemedial weaknesses limit the impact even of successful suits.11 11.One of the most prominent of the exclusionary zoning cases was decided by the U.S. Court of Appeals for the Second Circuit in 1988 and affirmed by the Supreme Court. Huntington Branch, NAACP v. Town of Huntington, 844 F.2d 926, 941 (2d Cir. 1988), aff’d, 488 U.S. 15, 18 (1988). But the housing development at issue spent decades continuing to fight for permits and, as of 2025, was finally accepting applications. Matinecock Court Residential Community Updates, Hous. Help Inc. (Mar. 25, 2025), https://sites.google.com/ho‌usinghelpinc.org/matinecockcourtdfc/home [https://perma.cc/V77N-7DXB].Show MoreJudges remain hesitant and perhaps institutionally ill-equipped to fully police whether housing markets discriminate.12 12.Samuel R. Bagenstos, The Structural Turn and the Limits of Antidiscrimination Law, 94 Calif. L. Rev. 1, 21–26 (2006); see also Village of Belle Terre v. Boraas, 416 U.S. 1, 13 (1974) (Marshall, J., dissenting) (“Our role is not and should not be to sit as a zoning board of appeals.”).Show MoreThe limiting principles courts use are sometimes unclear, and this Article does not resolve these uncertainties.13 13.See supra note 10 and accompanying text; infra notes 178–79, 315 and accompanying text.Show MoreNor do I mean to suggest that the FHA is radical in all respects. It asks radical questions—considering whether to restructure markets in their entirety and assessing whether almost any action by any actor discriminatorily reduces housing opportunity—but it does not often provide a radical answer or consequences.

Regardless, the Act has maintained an internal logic that is worth uncovering—and building upon. For all the Act’s weaknesses, it recognizes that restructuring markets is permissible and sometimes necessary to securing equality. Given the baseline of Title VII, which is often held to be the exemplar of antidiscrimination law, questioning the structure of housing markets at all is a radical move. The FHA does not accept that equality can be pursued only within the confines of the world as it currently is.

These structural ambitions reflect the demands of the statute itself. As Part III demonstrates, they derive from textual choices by the Act’s drafters, responding to the practical realities of housing markets and Congress’s dual purposes of ending discrimination and segregation.14 14.This Article is consistent with recent efforts to use “progressive textualism,” especially in the civil rights context, to return to the ambitions of the civil rights statutes themselves. See, e.g., Katie Eyer, Textualism and Progressive Social Movements, 90 U. Chi. L. Rev. Online 1, 2 (2024); Deborah A. Widiss, Proving Discrimination by the Text, 106 Minn. L. Rev. 353, 358–59 (2021); Muldrow v. City of St. Louis, 144 S. Ct. 967, 972 (2024) (rejecting lower courts’ restrictive Title VII precedents requiring “significant” harm because “Title VII’s text nowhere establishes that high bar”). However, in the FHA contexts described here, text, purpose, and most precedent point in the same direction. The goal here is not to restore the statute to an original meaning, but to recognize the statute’s operation.Show MoreBy its plain text, the Fair Housing Act covers more actors and different actions than Title VII.15 15.The statute does not, however, demarcate just how far it reaches or precisely when market structures are impermissible. The text and purpose of the statute support the questioning of market structures as potentially discriminatory, but do not offer their own dispositive account of which structures qualify. See infra Part III.Show MoreTitle VII, for example, primarily covers discrimination by “employer[s].”16 16.See, e.g., 42 U.S.C. § 2000e-2.Show MoreBut Congress extended fair housing liability beyond actions taken by certain actors or within particular relationships, like landlord-tenant or buyer-seller. The FHA intentionally ensures that whoever is capable of building discriminatory market structures can be made to stop. Other statutory language—focused on liability rather than coverage—indicates Title VII’s focus on discrimination at the personal or transactional level and the FHA’s attention to market conditions.

As the Supreme Court recognized early on, the “reach” of the Fair Housing Act was to create “truly integrated and balanced living patterns.”17 17.Trafficante v. Metro. Life Ins. Co., 409 U.S. 205, 211 (1972) (quoting 114 Cong. Rec. 3422 (1968) (statement of Sen. Walter Mondale)).Show MoreFor all the Act’s shortcomings, Congress gave it the breadth and powerful ambition to do what must be done to achieve that still-unfulfilled promise.

This Article’s aims are primarily to expose and explain the shape of current fair housing law. But identifying the FHA’s structural approach also offers new clarity on contemporary issues in fair housing law, as described in Part IV. It explains why the FHA has recently emerged as a leading tool in tackling discrimination by online platforms. It helps delineate the proper scope of the FHA’s important but ill-defined mandate that the government “affirmatively further” fair housing, which is currently the subject of a highly contested rulemaking. It reveals how judicial discomfort with the FHA’s breadth has been channeled into attacks on disparate impact. And it supports the recognition of longer and more indirect causal chains in FHA litigation.

Finally, the Article concludes by re-situating the FHA within the broader landscape of civil rights statutes. For while the FHA is conventionally understood to parallel Title VII, its attention to market structures instead resembles features of the Voting Rights Act (“VRA”), the Americans with Disabilities Act (“ADA”), and Title IX’s protections for college athletes. To fully understand the FHA—what it is and where it might go—scholars should look to these other civil rights statutes. And to understand civil rights law as a field, scholars must better understand the FHA.

It is an important time to clarify our understanding of the Fair Housing Act. Fair housing has taken on new public significance in response to both the larger mobilization for civil rights spurred by the Black Lives Matter movement18 18.Justin P. Steil, Nicholas F. Kelly, Lawrence J. Vale & Maia S. Woluchem, Introduction, in Furthering Fair Housing: Prospects for Racial Justice in America’s Neighborhoods 3, 8 (Justin P. Steil, Nicholas F. Kelly, Lawrence J. Vale & Maia S. Woluchem eds., 2021).Show Moreand new research underscoring the centrality of housing discrimination and segregation in entrenching inequality.19 19.See, e.g., Raj Chetty & Nathaniel Hendren, The Impacts of Neighborhoods on Intergenerational Mobility II: County-Level Estimates, 133 Q.J. Econ. 1163, 1208–10 (2018). See generally Richard Rothstein, The Color of Law: A Forgotten History of How Our Government Segregated America (2017) (detailing how discriminatory public policy created segregated and unequal communities).Show MoreBut this engagement comes as the law of fair housing has become unstable. The Supreme Court, in affirming the availability of disparate impact liability under the FHA, described—or perhaps created—a set of judicially imposed “safeguards” on disparate impact meant to avoid any constitutional concerns;20 20.Tex. Dep’t of Hous. & Cmty. Affs. v. Inclusive Cmtys. Project, Inc., 576 U.S. 519, 544 (2015).Show Morethe meaning of those safeguards has split the lower courts.21 21.See Inclusive Cmtys. Project, Inc. v. Lincoln Prop. Co., 920 F.3d 890, 901–05 (5th Cir. 2019).Show MoreMeanwhile, the Department of Housing and Urban Development (“HUD”)—the agency responsible for administering and interpreting the FHA—attempted to clarify various legal standards through rulemaking during the Obama Administration, only to reverse course under the first Trump Administration and again under the Biden Administration.22 22.See Affirmatively Furthering Fair Housing, 88 Fed. Reg. 8516, 8523–24 (proposed Feb. 9, 2023) (to be codified at 24 C.F.R. pts. 5, 91–93, 570, 574, 576, 903, 983); Discriminatory Conduct Under the Fair Housing Act, 24 C.F.R. § 100 (2025).Show MoreImportant aspects of fair housing law are newly up for grabs. With so much uncertain, it is valuable to spotlight what is settled—especially when what is settled is also what is radical.

The U.S. Court of Appeals for the District of Columbia Circuit put it well in an early opinion interpreting the FHA (one of the few to explicitly recognize this transformative ambition): the Act was “an attempt to alter the whole character of the housing market.”23 23.Mayers v. Ridley, 465 F.2d 630, 652 (D.C. Cir. 1972) (en banc) (Wilkey, J., concurring). Remarkably, this language comes from the split court’s narrower, moderate opinion, written by a conservative Nixon appointee. Judge Skelly Wright’s opinion for the court’s liberals went further still, calling for courts to excise all “vestiges” of discrimination from the “tainted” housing market. Id. at 643 (Wright, J., concurring).Show MoreThe court understood Congress to have seen housing discrimination not as a problem contained within individual acts of animus, nor even within the policies and practices of particular lenders or landlords. It is housing markets writ large that must be made nondiscriminatory. Fair housing law has been, from its inception, structural.

  1.  Jonathan Zasloff, The Secret History of the Fair Housing Act, 53 Harv. J. on Legis. 247, 248–49 (2016) [hereinafter Zasloff, Secret History] (describing conventional wisdom that the FHA was intentionally weak); Olatunde Johnson, The Last Plank: Rethinking Public and Private Power to Advance Fair Housing, 13 U. Pa. J. Const. L. 1191, 1205–07 (2011) (detailing the FHA’s original enforcement scheme). ↑
  2.  Wendell E. Pritchett, Where Shall We Live? Class and the Limitations of Fair Housing Law, 35 Urb. Law. 399, 401 (2003). ↑
  3.  See generally Douglas S. Massey & Nancy A. Denton, American Apartheid: Segregation and the Making of the Underclass (1993) (describing the perpetuation and harmful effects of extreme segregation). ↑
  4.  But see Richard H. Sander, Yana A. Kucheva & Jonathan M. Zasloff, Moving Toward Integration: The Past and Future of Fair Housing 145–52 (2018) (providing a revisionist take on the FHA’s strength). ↑
  5.  Johnson, supra note 1, at 1193–94; David D. Troutt, Inclusion Imagined: Fair Housing as Metropolitan Equity, 65 Buff. L. Rev. 5, 8 (2017); Heather R. Abraham, Fair Housing’s Third Act: American Tragedy or Triumph?, 39 Yale L. & Pol’y Rev. 1, 8–9 (2020). ↑
  6.  Throughout, this Article compares the FHA and Title VII’s treatment of discrimination on the basis of race, sex, and other protected characteristics. Each statute also has separate provisions applying a different “reasonable accommodations” standard for certain protected characteristics: religion in Title VII and disability in the FHA. 42 U.S.C. § 2000e(j); id. § 3604(f)(3)(B). Unless specified, this Article does not discuss those provisions. ↑
  7.  Tex. Dep’t of Hous. & Cmty. Affs. v. Inclusive Cmtys. Project, Inc., 576 U.S. 519, 539 (2015). ↑
  8.  U.S. Dep’t of Health & Hum. Servs., Bureau of Health Workforce, Sex, Race, and Ethnic Diversity of U.S. Health Occupations (2011–2015), at 10 tbl.1 (2017), https://web.archive.org/‌web/20241014113124/https://bhw.hrsa.gov/sites/default/files/bureau-health-workforce/data-research/diversity-us-health-occupations.pdf#expandhttps://bhw.hrsa.gov/data-research/revie‌w-health-workforce-research [https://perma.cc/KCW5-QVAU]. ↑
  9.  See generally Jonathan Zasloff, The Price of Equality: Fair Housing, Land Use, and Disparate Impact, 48 Colum. Hum. Rts. L. Rev. 98 (2017) [hereinafter Zasloff, Price of Equality] (arguing that more zoning regulations ought to be rejected under a disparate impact theory). See also Noah M. Kazis, Fair Housing, Unfair Housing, 99 Wash. U. L. Rev. Online 1, 13–21 (2021) [hereinafter Kazis, Unfair Housing] (providing a framework for effectively scrutinizing land use regulation under the FHA’s Affirmatively Furthering Fair Housing (“AFFH”) provisions). ↑
  10.  Jersey Heights Neighborhood Ass’n v. Glendening, 174 F.3d 180, 192 (4th Cir. 1999) (finding that the FHA did not cover a highway relocation decision because the Act “requires a closer causal link between housing and the disputed action”); Jones v. Off. of the Comptroller of the Currency, 983 F. Supp. 197, 202 (D.D.C. 1997) (declining to hold a bank regulator responsible for a lending regulation), aff’d, No. 97-5341, 1998 WL 315581 (D.C. Cir. May 12, 1998); Mich. Prot. & Advoc. Serv., Inc. v. Babin, 18 F.3d 337, 345 (6th Cir. 1994) (finding neighbors who fundraised to outbid a group home not liable because their actions did not directly make housing unavailable). ↑
  11.  One of the most prominent of the exclusionary zoning cases was decided by the U.S. Court of Appeals for the Second Circuit in 1988 and affirmed by the Supreme Court. Huntington Branch, NAACP v. Town of Huntington, 844 F.2d 926, 941 (2d Cir. 1988), aff’d, 488 U.S. 15, 18 (1988). But the housing development at issue spent decades continuing to fight for permits and, as of 2025, was finally accepting applications. Matinecock Court Residential Community Updates, Hous. Help Inc. (Mar. 25, 2025), https://sites.google.com/ho‌usinghelpinc.org/matinecockcourtdfc/home [https://perma.cc/V77N-7DXB]. ↑
  12.  Samuel R. Bagenstos, The Structural Turn and the Limits of Antidiscrimination Law, 94 Calif. L. Rev. 1, 21–26 (2006); see also Village of Belle Terre v. Boraas, 416 U.S. 1, 13 (1974) (Marshall, J., dissenting) (“Our role is not and should not be to sit as a zoning board of appeals.”). ↑
  13.  See supra note 10 and accompanying text; infra notes 178–79, 315 and accompanying text. ↑
  14.  This Article is consistent with recent efforts to use “progressive textualism,” especially in the civil rights context, to return to the ambitions of the civil rights statutes themselves. See, e.g., Katie Eyer, Textualism and Progressive Social Movements, 90 U. Chi. L. Rev. Online 1, 2 (2024); Deborah A. Widiss, Proving Discrimination by the Text, 106 Minn. L. Rev. 353, 358–59 (2021); Muldrow v. City of St. Louis, 144 S. Ct. 967, 972 (2024) (rejecting lower courts’ restrictive Title VII precedents requiring “significant” harm because “Title VII’s text nowhere establishes that high bar”). However, in the FHA contexts described here, text, purpose, and most precedent point in the same direction. The goal here is not to restore the statute to an original meaning, but to recognize the statute’s operation. ↑
  15.  The statute does not, however, demarcate just how far it reaches or precisely when market structures are impermissible. The text and purpose of the statute support the questioning of market structures as potentially discriminatory, but do not offer their own dispositive account of which structures qualify. See infra Part III. ↑
  16.  See, e.g., 42 U.S.C. § 2000e-2. ↑
  17.  Trafficante v. Metro. Life Ins. Co., 409 U.S. 205, 211 (1972) (quoting 114 Cong. Rec. 3422 (1968) (statement of Sen. Walter Mondale)). ↑
  18.  Justin P. Steil, Nicholas F. Kelly, Lawrence J. Vale & Maia S. Woluchem, Introduction, in Furthering Fair Housing: Prospects for Racial Justice in America’s Neighborhoods 3, 8 (Justin P. Steil, Nicholas F. Kelly, Lawrence J. Vale & Maia S. Woluchem eds., 2021). ↑
  19.  See, e.g., Raj Chetty & Nathaniel Hendren, The Impacts of Neighborhoods on Intergenerational Mobility II: County-Level Estimates, 133 Q.J. Econ. 1163, 1208–10 (2018). See generally Richard Rothstein, The Color of Law: A Forgotten History of How Our Government Segregated America (2017) (detailing how discriminatory public policy created segregated and unequal communities). ↑
  20.  Tex. Dep’t of Hous. & Cmty. Affs. v. Inclusive Cmtys. Project, Inc., 576 U.S. 519, 544 (2015). ↑
  21.  See Inclusive Cmtys. Project, Inc. v. Lincoln Prop. Co., 920 F.3d 890, 901–05 (5th Cir. 2019). ↑
  22.  See Affirmatively Furthering Fair Housing, 88 Fed. Reg. 8516, 8523–24 (proposed Feb. 9, 2023) (to be codified at 24 C.F.R. pts. 5, 91–93, 570, 574, 576, 903, 983); Discriminatory Conduct Under the Fair Housing Act, 24 C.F.R. § 100 (2025). ↑

  23.  Mayers v. Ridley, 465 F.2d 630, 652 (D.C. Cir. 1972) (en banc) (Wilkey, J., concurring). Remarkably, this language comes from the split court’s narrower, moderate opinion, written by a conservative Nixon appointee. Judge Skelly Wright’s opinion for the court’s liberals went further still, calling for courts to excise all “vestiges” of discrimination from the “tainted” housing market. Id. at 643 (Wright, J., concurring). ↑

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