“And I have written, way back, a number of law review articles about the Ninth Amendment and the — and the 14th Amendment and why that privacy is considered as part of a constitutional guarantee. And the — they’ve just wiped it all out.”
The president has been a fierce critic of Dobbs v. Jackson Women’s Health Organization, the Supreme Court’s decision that overturned a right to abortion established by the court in Roe v. Wade nearly a half-century ago. During a recent news conference, he said that he had written “a number of law review articles” and that two amendments to the U.S. Constitution had established a right to privacy that was crucial to the reasoning in the Roe opinion.
As we have documented before, the president has a tendency to sometimes embellish the factual record about his past. Earlier this year, he said he was arrested during civil rights protests when there was no evidence that ever happened. He also has claimed he was arrested for trying to see Nelson Mandela, but that was false.
These remarks about law review articles from the past caught our attention. Biden’s first campaign for the presidency, in 1988, collapsed after reporters discovered that Biden had flunked a class in law school for submitting a paper that borrowed heavily from another law review article without proper citation — and then made false or exaggerated claims about his law school record during a discussion months earlier with voters in New Hampshire.
So did Biden write such law review articles?
HeinOnline, an online platform of research articles, shows 19 law review citations that list Biden as an author or co-author. (The full list also includes six articles in Foreign Affairs magazine and other nonlegal publications.) But these articles concern issues such a violence against women, war powers, federal drug policy, world trade and foreign policy — issues that were central to Biden’s long career in the Senate. None of these law review articles concerned the right to privacy.
When we asked the White House for evidence of his statement, we received a long list of citations to comments Biden made about the right to privacy, often when he presided over Supreme Court nominations as the chairman of the Judiciary Committee. For instance, one citation noted that Biden got Chief Justice John G. Roberts Jr., during his confirmation hearings, to agree that there was a right of privacy to be found in the 14th Amendment, and one that “extends to women.”
While these remarks certainly demonstrate Biden’s long-standing interest in the legal debate over these amendments, they cannot be called law review articles.
The White House also provided an opinion piece that appeared under Biden’s name in the Philadelphia Inquirer in 1991, headlined, “Yes, the Constitution implies rights that aren’t spelled out.”
This is more on point. The op-ed focuses on the Ninth Amendment, which simply states: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” This amendment was an effort by James Madison to deal with concerns that, by listing certain rights, the Bill of Rights would prevent Americans from receiving any rights that had not been spelled out. Biden said in the op-ed that the amendment meant that “we assume that our personal lives are free from government intervention, absent specific constitutional authority for that action.”
But some years after that op-ed was published, the court, in a 1997 ruling, said that these additional rights need to be “deeply rooted in the Nation’s history and tradition.”
In his majority opinion in Dobbs, Justice Samuel A. Alito Jr. used that standard to argue that “the inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions. On the contrary, an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973.”
Alito’s recounting of history is not universally accepted. “When the United States was founded and for many subsequent decades, Americans relied on the English common law,” reads an amicus brief filed in Dobbs by the American Historical Association and the Organization of American Historians. “The common law did not regulate abortion in early pregnancy. Indeed, the common law did not even recognize abortion as occurring at that stage. That is because the common law did not legally acknowledge a fetus as existing separately from a pregnant woman until the woman felt fetal movement, called ‘quickening,’ which could occur as late as the 25th week of pregnancy.”
In any case, an opinion piece is not the same thing as a law review article, which tends to be longer and deeper in the legal weeds than a typical op-ed.
The Pinocchio Test
Biden can fairly claim to have written an op-ed for a newspaper about the Ninth Amendment and the right to privacy that he believes is part of it. He can also claim to have engaged in long discussions with justices now on the court about the rights embodied in the Ninth and 14th amendments. He certainly has a deep understanding of these issues from his long service on the Senate Judiciary Committee.
But the president stated he had written “a number of law review articles” about these amendments. That’s gilding the lily — and a president must remain accurate about his achievements. He earns Two Pinocchios.
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