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Trump court limited women’s rights using 19th century standards

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In Dobbs v. Jackson Women’s Health Organizationthe Supreme Court justices President Donald Trump has appointed to strike down Roe vs. Wade just delivered on Trump’s promise. The ruling limits women’s constitutional freedoms so dramatically that you can almost hear the chants of “lock her up!” from Trump supporters.

On the right, however, the decision is not seen as a step backwards. On the contrary, it is hailed as a constitutional restoration – a triumph of “originalism” over “living constitutionalism”. Judge Samuel A. Alito Jr., who wrote the majority opinion, sees himself as restoring the constitution as law and cleansing it of politics.

But Dobbs is clearly a political project. Reverse roe deer has been the animating goal of the conservative legal movement since it mobilized under the banner of originalism under the Reagan administration. Far from setting aside politics in favor of a neutral interpretation of the law, Alito’s ruling reveals how conservative justices encode the movement’s goals and values ​​under the guise of highly selective historical claims.

Alito’s opinion – joined by Justices Clarence Thomas, Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett – follows a kind of originalism in linking the meaning of the Fourteenth Amendment to the distant past, even if it does not does not pretend to identify the meaning of the amendment to the voters who ratified it. (roe deer places the right to abortion in the Freedom Guarantee of the Due Process Clause of the Fourteenth Amendment.) Instead, Alito follows a case called Washington v. Glucksberg (1997) and interprets the Fourteenth Amendment guarantee of liberty in light of the nation’s “history and traditions”; according to this view, only the rights deeply rooted in this history are protected. And the right to abortion is not, the majority said this week.

Justice Alito says tying the meaning of the Fourteenth Amendment liberty guarantee to American “history and traditions” prevents judges from imposing their own views on the case at hand. “In interpreting what is meant by the Fourteenth Amendment’s reference to ‘freedom’,” he writes, “we must guard against the natural human tendency to confuse what this Amendment protects with our own ardent views on the freedom that Americans should enjoy.” Here he echoes the late Judge Antonin Scalia, who wrote, in “Originalism: The Lesser Evil”, that turning to history “establishes a historical criterion that is conceptually quite distinct from the preferences of the judge himself. “.

But Dobbs shows why both of these statements are false. A judge’s reliance on the historical record can mask judicial discretion as well as constrain it.

In Dobbs, the Trump court defines the Constitution’s protections for liberty by largely referring to laws enacted in mid-19th century America. During this period – conveniently enough – there was a campaign to ban abortion nationwide. (Alito includes an appendix listing many of these state laws.) But consider what was still part of the “history and traditions” of this period: the law did not protect a woman’s right to control the property, income or sex in marriage; it was a period when the Supreme Court said states could deny women the right to practice law and states could deny women the right to vote.

Why would the Supreme Court today tie the meaning of the Fourteenth Amendment guarantee of liberty to laws enacted by men with such narrow view of women’s rights? The move is unprecedented. To date, the Supreme Court had not read the Constitution’s broad commitment to liberty in this time-limited way — for example, by enforcing contraceptive rights, the right to interracial marriage, and the right to homosexual marriage. The majority suggests that these other rights are not threatened by DobbsThomas’s logic — even if it adopts a method of interpreting freedom that discredits them (and even if Thomas calls for the relevant cases to be set aside in its agreement). Reading the guarantees of the Fourteenth Amendment in light of evolving conceptions of liberty has been so fundamental to modern constitutional jurisprudence that even the Glucksberg the case on which the court relied for its mandate to review history and traditions recognizes abortion as a protected freedom.

Traumatic pregnancies are terrible. Dobbs is going to make things worse.

Alito’s narrative of the nation’s history and traditions is shaped and whitewashed to substantiate the desired results. His version of the history of abortion laws, for example, profoundly dismisses the common law of the first republic, which criminalized abortion after it was expedited. He also provided an outrageously incomplete account of the mid-century campaign to ban abortion – writing, for example, that the opposition to abortion reflected in these laws was “heartfelt”. So he apologizes for wondering if politicians’ views on gender roles, at a time when women were disenfranchised, shaped the campaign to ban abortion, which they of course did. During the 19th century campaign against abortion, advocates of laws banning the practice argued that they were necessary to enforce women’s maternal and marital duties and to protect the ethno-religious character of the nation. Claims for the protection of unborn life were not self-contained as Alito claims, but deeply entangled with constitutionally suspect judgments, as documents from the time clearly show.

In all this talk of tradition, Alito begs a fundamental question: why should 19th-century anti-abortion laws limit how we understand the Constitution’s guarantee of freedom, nor the history and traditions of does segregation limit how we understand the Constitution’s equality guarantee? There is no good reason. The problem with rooting the meaning of our commitments in that past, as Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan succinctly put it in their dissent, is that “the men who ratified the Fourteenth Amendment and drafted the State laws of the time did not consider women as full and equal citizens. Do the judges who have joined the Dobbs majority? Apparently not.

They thought it was reasonable to allow states to coerce women based on laws enacted at a time when women were totally disenfranchised. And they signed an opinion in which a collection of decisions and laws written by white men was presented as representing the history and traditions of America, without a single female voice being represented; and who claimed that these traditions were sufficient to justify the deprivation of women today of half a century of constitutional rights. It is not an account of history “conceptually quite separate from the preferences of the judge himself”. It is the story that expresses the judicial preferences as the traditions of the nation

If anyone had bothered to look outside the statute books, they could have found plenty of evidence that 19th century Americans demanded autonomy in decisions about parenthood, just as they do today. These demands are expressed with passion in the abolitionist movements and for women’s suffrage. Women may not have had the right to vote, but they certainly had opinions about the importance of voluntary motherhood. If the Supreme Court wants to tie the meaning of freedom to the nation’s “history and traditions”, it must include the voices of the disenfranchised in such a narrative, unless it means perpetuating their powerlessness in under our current Constitution.

The judges who decided Dobbs scoff at “living constitutionalism”, but these originalists of course employ history and tradition for the purposes of living constitutionalism. The justices’ efforts to conceal their views on abortion in a story about the history and traditions of the Constitution reveal to us their view of women.

Rodney N.

The author Rodney N.