With its Siamese-twin decisions on Thursday and Friday, the Supreme Court didn't just turn back the clock or flip through the pages of the calendar looking for a new decade — or century — to love. Calling themselves textualists and originalists, they simply put the Constitution through a search engine and told it to look for some key words: Abortion? Uh-huh, not there. Gay sex? Not in 1791 or 1868! Same-sex marriage? Are you kidding?
This article first appeared in Salon.
But guns? Well, the founders spelled it "arms," but we know exactly what they had in mind! The right to walk around with your guns on your hip or slung over your shoulder because you need 'em for self-defense!
It's tempting to say that the justices handed down these two decisions because they could, but what they did and how they did it is even worse: Just a month after 19 elementary school children and their two teachers were shot dead with a semiautomatic military weapon of war, they mumbled about life and provided for the mechanics of death and. over a 24-hour period, set forth the new outlines of an obscene legal regimen.
They threw out 50 years of precedent and two of their previous decisions and concluded that since "the Constitution makes no express reference to a right to obtain an abortion," such a right does not exist. But the right to "keep and bear arms" is spelled out clear as a bell by the musket-owning founders in the wonderful Second Amendment.
For a constitutional right to be enjoyed by all citizens, according to the Roberts court, it must be old. Really old. If it didn't exist in, say, 1816, then it doesn't exist at all.
What the six so-called conservatives are relying on these days are two words not found in the Constitution: history and tradition. Both are suddenly seen as absolutely necessary in determining whether certain rights deserve to be preserved. The decisions are rife with phrases like, "We then canvassed the historical record, and found yet further confirmation," and you know what the "historical record" confirmed, don't you? Exactly what the majority wanted it to. It turns out that in order for a constitutional right to be enjoyed by American citizens, it must be old, and the older the better. If a right existed in the 18th and 19th centuries, well, this court is fine with it. But if that right wasn't enjoyed by the citizens of, say, 1816 — like the right to privacy, under which various other so-called modern rights exist, such as the right to purchase and use contraceptives, the right to have sex in the manner you choose, and the right to marry a person of your own sex — then those rights simply don't exist.
The majority leaves out the inconvenient truth that abortions, legal or otherwise, have been performed since the beginning of history as we know it, and the ownership of guns and other weapons of death and destruction have been restricted by class, income, social standing and political power for just as long.
The Thomas opinion on guns, along with concurrences, is 83 pages long. The Alito opinion on abortion, with concurrences, is 147 pages long. I would encourage you to read both decisions, if only to experience the blissful tsunami of their references to the way things were back in the 1700s and 1800s, but it's actually necessary only to take a look at a very few lines from the appendix to the Alito decision, which lists excerpts of the laws on the books forbidding abortion in the 37 states and 13 territories (!) that eventually became states from the 19th and 20th centuries. They are listed in chronological order by date, and just check out the first few:
- Missouri (1825)
- Illinois (1827)
- New York (1828)
- Ohio (1834)
- Indiana (1835)
- Maine (1840)
- Alabama (1841)
Citing laws from the 19th and early 20th centuries to justify what the majority is doing in the 21st century isn't just corrupt, it's disgusting, it's insulting, it's condescending, and it amounts to madness. The purpose of this list of horrific and antiquated laws and punishments for women who have abortions and people who perform them is to make the point that ending Roe is in some sense returning to normal, because abortion has been illegal for a very long time practically everywhere. But the subtext is just as clear: You should be glad we're not turning the clock back to this.
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The language of the statutes is as brutal as the prison terms, running from six months to 10 years, that were prescribed for women who have abortions and anyone assisting them. I'll give you one excerpt just so you get a flavor of the "history and tradition" of abortion laws that the majority cites with obvious glee. This is from the Virginia statute of 1848:
Any free person who shall administer to any pregnant woman, any medicine, drug or substance whatever, or use or employ any instrument or other means with intent thereby to destroy the child with which such woman may be pregnant, or to produce abortion or miscarriage, and shall thereby destroy such child, or produce such abortion or miscarriage, unless the same shall have been done to preserve the life of such woman, shall be punished, if the death of a quick child be thereby produced, by confinement in the penitentiary, for not less than one nor more than five years, or if the death of a child, not quick, be thereby produced, by confinement in the jail for not less than one nor more than twelve months.
That the Virginia law, which applies to "any free person," is racist on its face causes the Supreme Court majority no shame whatsoever. The entire opinion, along with its concurrences, is practically giddy with delight. Comparing their reversal of Roe v. Wade with the Warren court's reversal of Plessy v. Ferguson in its 1954 decision ending segregation in schools, the Republicans on the court tell us that up is down with smiles on their faces. Their reasoning doesn't even amount to intellectual dishonesty. It's legal terrorism.
It makes you wonder, doesn't it, how long we'll have to wait until a decision comes down from this court with an appendix approvingly listing Jim Crow laws in support of throwing out, oh, let's take a wild guess and say Brown v. Board of Education. After all, why start with boring stuff like affirmative action when we can go back and take care of this whole race thing at its source, huh?
It took the Civil War to end slavery. All it took to return to enslaving women by forcing them to bear an unwanted child and go through the pain and sometimes life-threatening act of giving birth was the six signatures of the Republican majority. For the likes of Thomas and Alito and the rest of them, if it was good enough for the founders, it's good enough for us.
Oh, by the way: here's another word that's not in the wonderful founding document we call the Constitution: Woman.