Volume 111

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). ↑

Interpretive Lawmaking

For nearly 100 years, prevailing American legal thought has rejected the idea that there can be unwritten bodies of law that judges ascertain and apply just as they do written law. Instead, the story goes, the only preexisting sets of legal rules come from written texts; all other rules—at common law, in equity, or in filling gaps in statutory or constitutional text—are necessarily made by judges. So, when a written text fails to provide a legal rule, courts have the power to make policy decisions and create one, subject to some limitations such as the Due Process Clause.

But the Founders understood judges to be capable of resolving disputes by only finding law—a belief that persisted into the early twentieth century. Not only did judges lack the authority to make law at common law or in equity, but they also lacked authority to make law in applying written text—even when traditional methods of finding and applying written law provided no answer and even if Congress intended to delegate lawmaking power. What’s more, the judicial power granted in Article III was not originally understood to have included a freestanding lawmaking power. And because it is possible for judges to find law, that original understanding might constrain the judiciary today. To be sure, it is often difficult to know where interpretation and application end and lawmaking begins. And the Founders’ conception of the judicial role might not be binding or might have been altered by nearly a century’s practice. But judges, especially originalist judges, should seriously confront the fact that, as an original matter, the Constitution granted judges no lawmaking power.

This Article also explores how several current judicial doctrines might change if courts refused to make law in applying written text. For example, Article III could offer its own prohibition against vague statutes—subject to different requirements and remedies than the conventional due process-based vagueness doctrine. A return to the original understanding of the judicial power would cast doubt on the judicial practices of interstitial lawmaking and of making law when applying so-called “common law statutes.” And Erie guesses might raise Article III concerns if the relevant state court is authorized to make law (in which case federal courts predicting such a state court would be impermissibly lawmaking). Stare decisis considerations might counsel caution in some areas. But judges should also approach the constitutional problems and doctrinal inconsistencies caused by uncritical judicial lawmaking with clear eyes.

Introduction

Justice Oliver Wendell Holmes, Jr., derided the idea of preexisting unwritten law as belief in a “brooding omnipresence in the sky.”1 1.See S. Pac. Co. v. Jensen, 244 U.S. 205, 222 (1917) (Holmes, J., dissenting).Show MoreHe even criticized Justice Story for being “dominat[ed]” by such a fanciful idea in Swift v. Tyson.2 2.41 U.S. (16 Pet.) 1 (1842), overruled by Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938); Black & White Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer Co., 276 U.S. 518, 533–35 (1928) (Holmes, J., dissenting).Show MoreShortly thereafter, the Supreme Court declared the idea a “fallacy” and disclaimed the existence of any “transcendental body of law outside of any particular State but obligatory within it unless and until changed by statute.”3 3.Erie, 304 U.S. at 79 (quoting Black & White Taxicab, 276 U.S. at 533 (Holmes, J., dissenting)).Show MoreIn the modern era, even Justice Scalia, who was otherwise considered a historical formalist, considered the idea “naive.”4 4.James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 549 (1991) (Scalia, J., concurring in the judgment); Stephanos Bibas, Blakely’s Federal Aftermath, 16 Fed. Sent’g Rep. 333, 341–42 (2004) (noting “Justice Scalia’s historical, formalist ideal”). Justice Scalia distinguished what the lawmaking legislators do by recharacterizing judicial lawfinding as a case-by-case lawmaking in which judges “discern[] what the law is, rather than decreeing what it is today changed to, or what it will tomorrow be.” James B. Beam, 501 U.S. at 549; see also id. at 546 (White, J., concurring in the judgment) (arguing that Justice Scalia’s proposed distinction does not work and relies on “citizens who are naive enough to believe” that lawfinding is possible). But that move does not completely avoid the problem because lawfinding at the Founding was not considered to be lawmaking at all. See infra note 128.Show MoreIf it is true that judges routinely make law, then the basis for the Constitution’s protections of judicial independence, such as life tenure, becomes unclear, as they were premised on the idea that judges would find law. And if judges are not in fact so constrained, why should those protections bind today?

But the tides are turning—or returning. Recent scholarship has defended the prevailing conception at the Founding that judges can find law—either as expressed in written text or as existing as authoritative unwritten law.5 5.See, e.g., Stephen E. Sachs, Finding Law, 107 Calif. L. Rev. 527, 529 (2019) [hereinafter Sachs, Finding Law]. To be sure, seeds of dissent have been around for much longer. See William A. Fletcher, The General Common Law and Section 34 of the Judiciary Act of 1789: The Example of Marine Insurance, 97 Harv. L. Rev. 1513, 1514–15 (1984); Caleb Nelson, A Critical Guide to Erie Railroad Co. v. Tompkins, 54 Wm. & Mary L. Rev. 921, 924–37 (2013) [hereinafter Nelson, Critical Guide].Show MoreOne commentator has even argued that the judicial power given to federal courts in Article III does not include the authority to make common law.6 6.See Micah S. Quigley, Article III Lawmaking, 30 Geo. Mason L. Rev. 279, 302–05 (2022).Show MoreAnd a recent article advances the argument that the law does not necessarily run out, which means that a judge could only find law.7 7.See Charles F. Capps, Does the Law Ever Run Out?, 100 Notre Dame L. Rev. (forthcoming 2025) (manuscript at 11–12), https://papers.ssrn.com/sol3/papers.cfm?abstract_‌id=4908863 [https://perma.cc/97YH-FDPP].Show MoreFormalist judges have introduced some of these underlying theories in various contexts.8 8.See, e.g., Lester v. United States, 921 F.3d 1306, 1312–13 (11th Cir. 2019) (Pryor, J., statement respecting the denial of rehearing en banc) (asserting that judges find law in the context of retroactivity in collateral proceedings).Show MoreBut to date, little attention has been paid to legal interpretation in a post-realist legal order.9 9.One notable recent exception is Professor Charles Tyler. See Charles W. Tyler, Common Law Statutes, 99 Notre Dame L. Rev. 669, 679–84 (2023). But he offers other reasons for using general law in interpretation, see id. at 684–92, and avoids answering the question whether Article III requires it, id. at 685 & n.92.Show MoreThis Article fills that void.

Historically, courts distinguished between interpreting and applying law—which were permissible judicial functions—and making law when neither statute nor unwritten law provided a legal rule—which was an impermissible legislative function.10 10.See, e.g., Gelston v. Hoyt, 16 U.S. (3 Wheat.) 246, 309 (1818).Show MoreAlthough the line was not always easy to draw, courts tried to thread the needle and considered themselves to be applying only preexisting law, possible instances of judicial lawmaking notwithstanding. It was in this legal context that Article III was drafted and ratified. The judicial power referenced in Article III was not understood to contain a substantive lawmaking power—even when no law provided an applicable rule.11 11.See infra Subsection II.A.3.Show MoreAnd because judges found rather than made law, they plausibly needed to be independent from political interests that would seek to influence them to create new law outside the legislative process.

This conclusion has obvious relevance for cases involving unwritten law, but the Founding generation similarly understood the judicial power to be so limited in cases involving written law. When a case turned on a question of written law, courts first looked to the text—in the light of the common law and other legal customs—to find the relevant legal rule. If this textual inquiry did not provide an answer, courts could apply a rule of unwritten law (if there was one) or state law in some instances. And if there was no applicable unwritten- or state-law rule, courts considered themselves bound to simply declare that there was no legal rule and use default rules or burdens of proof to resolve the parties’ dispute.12 12.See infra Subsection II.A.3.Show MoreIn a way, the lack of authority would have incentivized judges to find all the law they could in recognized sources.

Then arrived the legal realist movement, which was reflected in Erie Railroad Co. v. Tompkins. Erie declared three principles, only one of which I challenge here. First, it explained that in cases arising from diversity jurisdiction, state substantive law applied under both the Rules of Decision Act and the Constitution.13 13.Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938); Nelson, Critical Guide, supra note 5, at 951.Show MoreNothing in this Article undermines that conclusion.14 14.For an argument that this conclusion did not support the holding in Erie, see Nelson, Critical Guide, supra note 5, at 951–56, 959.Show MoreSecond, in a departure from the first nearly 150 years of American jurisprudence, Erie stated that there was no American general common law.15 15.Erie, 304 U.S. at 78–79. For an argument that such general law demonstrably existed, see Fletcher, supra note 5, at 1514–21. For an argument that it persists post-Erie, see Caleb Nelson, The Persistence of General Law, 106 Colum. L. Rev. 503, 547–48, 548 n.216 (2006) [hereinafter Nelson, Persistence].Show MoreAgain, nothing here requires jettisoning this conclusion. If there is a general common law, then it might be within the judicial power to find and apply it; if there is no such law, judges would still have been considered bound to find law, albeit from other sources. Third, Erie asserted that there was no such thing as unwritten law—when judges pronounced a legal rule, they were in fact making that rule as much as a legislature would make a rule through a statute.16 16.Erie, 304 U.S. at 79.Show MoreOnly this part of Erie is implicated here. Erie was incorrect to conclude that finding law is impossible. Even further, by not granting the federal judiciary any lawmaking power, the Constitution necessarily envisioned a judiciary confined to finding law. So, to reiterate, nothing I say here implicates Erie’s conclusions that state substantive law governs in diversity cases or that there is no American general common law. Rather, my target is Erie’s conclusion that judicial lawmaking is inevitable. Not only is that conclusion mistaken, but Article III’s grant of judicial power contemplated the opposite: a judiciary that only found law.

Part I explains that finding law is indeed possible. The notion that finding law is possible is a prerequisite to the argument that the Constitution put into place a system that required courts to exclusively find law. If finding law were not possible, the conceptions of judicial power held by the Framers and ratifiers of the Constitution would have little import, even under originalist theories. Part I borrows on recent scholarship by Steve Sachs, Micah Quigley, and Allan Beever, all of whom defend in different ways the possibility of finding unwritten law, and all of whom tie those theories to Founding-era legal thought.

Part II first argues that the judicial power granted to the federal judiciary in Article III did not include a freestanding lawmaking power. The Framers and ratifiers considered judges bound to find and apply preexisting law—whether written or unwritten. And that conception informs the phrase “judicial Power” in Article III. Assuming our government is one of enumerated powers, the fact that the judicial power did not include a freestanding lawmaking power entails that judges were granted only the power to find law, not make it.

Part II also responds to two forceful counterarguments that stand in the way. First, the Founding generation understood courts’ power to make procedural law as consistent with the judicial role. And if Article III’s judicial power allows procedural lawmaking, the argument goes, surely it allowed judges to make substantive law. Second, sometimes—explicitly or implicitly—Congress delegated its Article I lawmaking power to the judiciary. When Congress attempted to do so, an objector might argue, judges were constitutionally obligated to honor Congress’s intent and make law. Regardless of whether this potential for delegated lawmaking justified judicial lawmaking in areas without such delegation, Article III’s judicial power surely allowed judges to make law when Congress delegated that power to them.

But both counterarguments come up short. Federal courts’ limited authority to make “procedural law” did not justify a freestanding substantive lawmaking power. The source of the federal judiciary’s procedural lawmaking power is uncertain. It might be an incidental judicial power to the case-deciding judicial power (that is, the judicial power granted in Article III). In other words, as a historical matter, the case-deciding judicial power necessarily entailed a procedural-lawmaking judicial power. Or it could be understood as an inherent power. Under this theory, the judiciary had the power to make procedural law because there was no way to exercise its case-deciding judicial power without making procedural law. But under either theory, courts’ procedural lawmaking power (1) was strictly limited to questions of procedure and (2) could be permissibly exercised only when no other law—written or unwritten—provided a procedural rule on point.17 17.See, e.g., Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 43 (1825) (explaining that a procedural question within the inherent power of the judiciary could be regulated by Congress, in which case the judiciary’s power was dormant); Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 227–28 (1821) (similar proposition for the judicial contempt power).Show More

Nor was Congress understood to be able to delegate its legislative power to courts.18 18.See 1 Walter Malins Rose, A Code of Federal Procedure § 6, at 47 (1907) (“[T]he courts may not be required, nor have they a right to exercise non-judicial powers.”).Show MoreUnlike the legislative and executive branches, the judicial branch was given no role in the legislative process and no legislative powers.19 19.SeeU.S. Const. art. I, § 1; id. §§ 3, 7; The Federalist No. 47, at 300–05 (James Madison) (Clinton Rossiter ed., 1961) (presenting this view of the separation of powers and collecting instances of crossovers in the states, including instances of the executive branch being given limited legislative powers).Show MoreAnd the structure of judicial review makes it even more unlikely that courts could have made law—even with acquiescence from the other two branches—because judges could not be neutral arbiters of the constitutionality of their own laws. To be sure, this nondelegation principle did not prohibit all judicial discretion in every context, but early courts took seriously the idea that congressional delegation did not provide a lawmaking safe harbor.

Part III addresses the admittedly murky line between applying written texts in adjudication and lawmaking. The fact that a line is difficult to discern does not mean that the distinction is hopelessly indeterminate. Though I do not purport to set forth a clear formula for determining when a court has made law or found and applied it, there are some instances in which courts have indisputably made law. I examine those examples and seek to deduce some guiding principles from which to identify judicial lawmaking.

Part IV examines some potential implications on modern judicial doctrines. In the nearly ninety years since Erie, many doctrines have developed in the shadow of Erie’s presumption that the judiciary has the authority to make law. I examine four such doctrines here and consider how each of these doctrines might be altered if courts revived a lawfinding-only approach.

First, instead of—or perhaps in addition to—being rooted in the Due Process Clause, vagueness doctrine and its accompanying canons of statutory interpretation might have a root in Article III. Grounding vagueness doctrine in Article III would also restrict the remedies available in vagueness challenges; for example, it would cut against facial invalidation of statutes because future courts would still be obligated to apply the statute when law can be found in it.

Second, some laws are not vague in the traditional sense but still invite judicial lawmaking. These laws are so broad that no one interprets them to have their full textual scope, such as Section One of the Sherman Act.20 20.See infra notes 317–22 and accompanying text.Show MoreAlthough some of these laws could be read as codifying common law principles, federal courts have not always considered themselves to be constrained by the common law at the time of enactment or the common law as developed over time. Instead, courts have taken it upon themselves to make new law and essentially create a new statute via their own judicial policy. But that arrogation of power leaves the judiciary with the legislative task of weighing policy interests to determine the reach of a duly enacted statute.

Third, written texts sometimes appear incomplete or destined to fail, such as the Banking Act of 1933, which created the Federal Deposit Insurance Corporation (“FDIC”).21 21.See Banking Act of 1933, Pub. L. No. 73-66, § 12B, 48 Stat. 162, 168 (1933).Show MoreCourts in those cases have concluded that they have the power to weigh competing federal policies and fashion their own rules through “interstitial lawmaking.”22 22.See Robert J. Pushaw, Jr., The Inherent Powers of Federal Courts and the Structural Constitution, 86 Iowa L. Rev. 735, 746–47, 747 n.42 (2001).Show More Openly acting as policy-makers, courts create rules that protect federal interests by considering whether a uniform federal rule is needed and which one to create.23 23.See United States v. Kimbell Foods, Inc., 440 U.S. 715, 727–28 (1979) (“Whether to adopt state law or to fashion a nationwide federal rule is a matter of judicial policy ‘dependent upon a variety of considerations always relevant to the nature of the specific governmental interests and to the effects upon them of applying state law.’” (quoting United States v. Standard Oil Co., 332 U.S. 301, 310 (1947))).Show MoreAt bottom, courts are creating and enforcing their own legislative decisions and balancing competing interests with (at best) loose congressional guidance.

And finally, although Article III does not define the powers of state courts, the prevailing lawfinding conception affects state law when federal courts perform “Erie guesses.” One of the principles underlying Erie assumes that state high courts must always make law.24 24.See Nelson, Critical Guide, supra note 5, at 975–84; cf. Michael Steven Green, Erie’s Suppressed Premise, 95 Minn. L. Rev. 1111, 1112–13 (2011) [hereinafter Green, Premise].Show MoreBut if state courts make new law in adjudications, that law could not have preexisted the relevant decision. So, rather than guess what the state supreme court would do (thereby in a very real sense making the law that state courts would have made in the future), federal courts should state that there is no law to apply, yet. A close examination of state constitutional law, however, might reveal that state courts cannot or do not make law25 25.See Green, Premise, supra note 24, at 1126–27 (discussing Georgia practices regarding unwritten law); Jason Boatright, End Judicial Lawmaking, 24 Tex. Rev. L. & Pol. 355, 370 (2020) (discussing the same in Texas).Show Moreor that even intermediate state appellate courts have some limited power to make law.

None of this is to say that these doctrines (and others premised on a judicial lawmaking power) must be undone or rejected. A return to lawfinding as the exclusive method for answering questions of substantive law would have its downsides as well. Judges might become increasingly likely to read too much into the text if they can no longer make law outside of it, our legal community might have let its lawfinding muscles decay for too long to be brought back to life, and perhaps a greater attention to unwritten law would result in a less constrained judiciary than one that could make law but was nonetheless bound by limiting doctrines. (Just to name a few.) As a result, stare decisis considerations might counsel against walking back any of these doctrines, especially those subject to a heightened statutory stare decisis standard. So perhaps the answer would be not to undo any of these doctrines, but to cabin them in recognition of their uneasy pedigree.

And of course, an exclusively lawfinding regime might be rejected on the ground that originalist interpretations of the Constitution in no way bind us today or that decades of practice and acquiescence have sanctioned judicial lawmaking. But even so, originalists and non-originalists alike should be open-eyed about the relationship between the original understanding of the judicial role and its more modern conception.

  1.  See S. Pac. Co. v. Jensen, 244 U.S. 205, 222 (1917) (Holmes, J., dissenting). ↑
  2.  41 U.S. (16 Pet.) 1 (1842), overruled by Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938); Black & White Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer Co., 276 U.S. 518, 533–35 (1928) (Holmes, J., dissenting). ↑
  3.  Erie, 304 U.S. at 79 (quoting Black & White Taxicab, 276 U.S. at 533 (Holmes, J., dissenting)). ↑
  4.  James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 549 (1991) (Scalia, J., concurring in the judgment); Stephanos Bibas, Blakely’s Federal Aftermath, 16 Fed. Sent’g Rep. 333, 341–42 (2004) (noting “Justice Scalia’s historical, formalist ideal”). Justice Scalia distinguished what the lawmaking legislators do by recharacterizing judicial lawfinding as a case-by-case lawmaking in which judges “discern[] what the law is, rather than decreeing what it is today changed to, or what it will tomorrow be.” James B. Beam, 501 U.S. at 549; see also id. at 546 (White, J., concurring in the judgment) (arguing that Justice Scalia’s proposed distinction does not work and relies on “citizens who are naive enough to believe” that lawfinding is possible). But that move does not completely avoid the problem because lawfinding at the Founding was not considered to be lawmaking at all. See infra note 128. ↑
  5.  See, e.g., Stephen E. Sachs, Finding Law, 107 Calif. L. Rev
    . 527, 529 (2019)

    [hereinafter Sachs, Finding Law]. To be sure, seeds of dissent have been around for much longer. See William A. Fletcher, The General Common Law and Section 34 of the Judiciary Act of 1789: The Example of Marine Insurance, 97 Harv. L. Rev. 1513, 1514–15 (1984); Caleb Nelson, A Critical Guide to Erie Railroad Co. v. Tompkins, 54

    Wm. & Mary L. Rev. 921, 924–37 (2013) [hereinafter Nelson, Critical Guide]. ↑

  6.  See Micah S. Quigley, Article III Lawmaking, 30 Geo. Mason L. Rev
    .

    279, 302–05 (2022). ↑

  7.  See Charles F. Capps, Does the Law Ever Run Out?, 100 Notre Dame L. Rev. (forthcoming 2025) (manuscript at 11–12), https://papers.ssrn.com/sol3/papers.cfm?abstract_‌id=4908863 [https://perma.cc/97YH-FDPP]. ↑
  8.  See, e.g., Lester v. United States, 921 F.3d 1306, 1312–13 (11th Cir. 2019) (Pryor, J., statement respecting the denial of rehearing en banc) (asserting that judges find law in the context of retroactivity in collateral proceedings). ↑
  9.  One notable recent exception is Professor Charles Tyler. See Charles W. Tyler, Common Law Statutes, 99 Notre Dame L. Rev. 669, 679–84 (2023). But he offers other reasons for using general law in interpretation, see id. at 684–92, and avoids answering the question whether Article III requires it, id. at 685 & n.92. ↑
  10.  See, e.g., Gelston v. Hoyt, 16 U.S. (3 Wheat.) 246, 309 (1818). ↑
  11.  See infra Subsection II.A.3. ↑
  12.  See infra Subsection II.A.3. ↑
  13.  Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938); Nelson, Critical Guide, supra note 5, at 951. ↑
  14.  For an argument that this conclusion did not support the holding in Erie, see Nelson, Critical Guide, supra note 5, at 951–56, 959. ↑
  15.  Erie, 304 U.S. at 78–79. For an argument that such general law demonstrably existed, see Fletcher, supra note 5, at 1514–21. For an argument that it persists post-Erie, see Caleb Nelson, The Persistence of General Law, 106 Colum. L. Rev. 503, 547–48, 548 n.216 (2006) [hereinafter Nelson, Persistence]. ↑
  16.  Erie, 304 U.S. at 79. ↑
  17.  See, e.g., Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 43 (1825) (explaining that a procedural question within the inherent power of the judiciary could be regulated by Congress, in which case the judiciary’s power was dormant); Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 227–28 (1821) (similar proposition for the judicial contempt power). ↑
  18.  See 1 Walter Malins Rose, A Code of Federal Procedure
    § 6

    , at 47 (1907) (“[T]he courts may not be required, nor have they a right to exercise non-judicial powers.”). ↑

  19.  See U.S. Const. art. I, § 1; id. §§ 3, 7; The Federalist No. 47, at 300–05 (James Madison) (Clinton Rossiter ed., 1961) (presenting this view of the separation of powers and collecting instances of crossovers in the states, including instances of the executive branch being given limited legislative powers). ↑
  20.  See infra notes 317–22 and accompanying text. ↑
  21.  See Banking Act of 1933, Pub. L. No. 73-66, § 12B, 48 Stat. 162, 168 (1933). ↑
  22.  See Robert J. Pushaw, Jr., The Inherent Powers of Federal Courts and the Structural Constitution, 86 Iowa L. Rev.

    735, 746–47, 747 n.42 (2001). ↑

  23.  See United States v. Kimbell Foods, Inc., 440 U.S. 715, 727–28 (1979) (“Whether to adopt state law or to fashion a nationwide federal rule is a matter of judicial policy ‘dependent upon a variety of considerations always relevant to the nature of the specific governmental interests and to the effects upon them of applying state law.’” (quoting United States v. Standard Oil Co., 332 U.S. 301, 310 (1947))). ↑
  24.  See Nelson, Critical Guide, supra note 5, at 975–84; cf. Michael Steven Green, Erie’s Suppressed Premise, 95 Minn. L. Rev. 1111, 1112–13 (2011) [hereinafter Green, Premise]. ↑

  25.  See Green, Premise, supra note 24, at 1126–27 (discussing Georgia practices regarding unwritten law); Jason Boatright, End Judicial Lawmaking, 24 Tex. Rev. L. & Pol

    .

    355, 370 (2020) (discussing the same in Texas). ↑

©Virginia Law Review Association. All rights reserved.