The Radical Center
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The Radical Center

Alito’s Un-American Traditionalism

Salem Witch Trials: Traditionalism in Action

Justice — or is it Injustice — Alito gives a typical Conservative argument against reproductive choice that is both philosophical and historically wrong. Like so many on the Right these day actual facts don’t matter to him and reason is rejected in favor of religious dogma.

Alito argued if there is no long tradition supporting a right then violating it is fine; it doesn’t really exist. He said there is “an unbroken tradition of prohibiting abortion on pain of criminal punishment… from the earliest days of the common law until 1973.” I will focus on the argument from traditionalism.

A Tradition of Injustice

Individual rights are inherently contrary to tradition because the tradition of the human race is one of power-hungry rulers using violence to subjugate individuals. It meant burning heretics at the stake, killing “witches,” lynchings in the South, concentration camps, genocide, religious intolerance and a host of other evils. The very foundation of America’s classical liberalism was a dramatic break with tradition. Yes, violating rights is traditional and it is conservative — it just doesn’t correspond with the liberal origins of the Constitution.

Alito’s reliance on tradition is such he invokes the writings of Sir Matthew Hale who, he said, “described abortion of a quick child who died in the womb as a “great crime’ and a ‘great misprision.’” There are a couple of things to notice. First, Hale speaks of a “quick child” which means later in the pregnancy term. Alito is quoting sources allowing abortion in the first trimester but then falsely asserts there was no legal right to abortion at any stage! The very sources he quotes say the opposite.

Secondly, he is quite selective in his use of tradition. Hale was truly a traditionalist, but does Mr. Alito want to rely on the tradition of a man who relied on “spectral evidence” to try women for witchcraft and had them executed? Hale himself invoked tradition to justify those actions. He stated the existence of witches needn’t be proven because the Bible said they existed as did the law. Then, channelling Alito — or is Alito channelling him? — Hale wrote, “the wisdom of all nations had provided laws against such persons, which is an argument of their confidence of such a crime.” There is no shortage of tradition supporting any injustice and inhumane action you can imagine.

Relying on tradition to justify his actions Thomas Hale had Rose Cullendar and Amy Duney executed for witchcraft. Another tradition Hale was known to endorse was that of marital rape. Hale claimed, “The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract.”

Alito also asserts “Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion. Zero. None. No state constitutional provision had recognized such a right.” Is this true?

Historian Leslie Reagan wrote the definitive history of abortion, in 2016 CNN summarized Reagan’s findings: “In the 18th century and until about 1880, abortions were allowed under common law and widely practiced. They were illegal only after ‘quickening,’ the highly subjective term used to describe when pregnant women could feel the fetus moving, Reagan said.”

American Progress wrote:

Abortion was not just legal — it was a safe, condoned, and practiced procedure in colonial America and common enough to appear in the legal and medical records of the period. Official abortion laws did not appear on the books in the United States until 1821, and abortion before quickening did not become illegal until the 1860s. If a woman living in New England in the 17th or 18th centuries wanted an abortion, no legal, social, or religious force would have stopped her.

This tradition of legal abortion was one brought over to the colonies from England itself. Certainly surgical interventions were rare as the field itself was still quite primitive but abortions induced by various herbs were common and medical books of the era were explicit in this regard.

Invoking tradition is a favored tactic of conservatives but it’s woefully irrelevant. With thousands of years of human history almost any action can be deemed traditional. The traditionalist need only be selective in which traditions he cites and which he ignores. He is free to claim anything as traditional. Certainly the genocide of Putin in the Ukraine today can be found in human tradition.

Conservatives present tradition as a solid foundation but it is quicksand with no objective meaning whatsoever. It is merely cherry picking historical facts and weaving them together into a selective argument to justify whatever whim the conservative is indulging.

Twisting the Constitution Inside-Out

Alito said: “The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion…” This is backwards. The Constitution, while it lists some rights of the people, does not offer an exhaustive rights list at all, and the Founders never said it did — quite the opposite in fact. Alito is pushing the same rot that said it was perfectly fine to criminalize gay men and women. In other words, we’ve been here before.

When Justice White upheld “sodomy” laws in Georgia he made the same argument: “The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of so many States that still make such conduct illegal and have done so for a very long time.” Justice Burger concurred saying the removal of state interference in the private lives of peaceful citizens “would be to cast aside millennia of moral teaching.”

The exact same logic (sic) could be used, and has been, on a multiplicity of issues. The same was true of laws forbidding interracial marriage in much of the United States. While there are always exceptions in some jurisdictions these prohibition are generally pervasive. Historically U.S. law refused to recognize marriage equality as well. The traditional law refused to grant equality of rights to women based entirely on their gender, and it did the same thing to racial minorities—denying them rights solely on account of race. In other words, the logic of Alito is an assault on the very concept of equality of rights before the law.

Another deep flaw in the irrationality of Alito is he demands the Constitution itemize every right and any unenumerated right he assumes does not exist. The Founders rejected that logic.

One of the lawyers at the Constitutional Convention (1787), James Wilson, dismissed the idea of enumerate rights saying, “Who will be bold enough to undertake to enumerate ALL the rights of the people?” The Founders were of the opinion that while there were some major rights worthy of listing a list of all rights would be endless and an impossible undertaking.

The Federalist Papers said the “the Constitution is itself, in every rational sense, and to every useful purpose, a Bill of Rights.” Alexander Hamilton explained how this was the case. He said listing rights the government may not violate could give pretense to the claim that unless a right is enumerated it doesn’t exist — Alito’s very argument Alito. Hamilton said such logic is an excuse for grabbing power. “Why declare that things shall not be done,” he wrote, “which there is not power to do. Why, for instance, should it be said that liberty of the press shall not be restricted, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power, but it is evident that it would furnish to men disposed to usurp, a plausible pretense for claiming that power.”

Given the dishonesty of political-power grabbers the Founders felt it necessary to make it once and for all clear that rights exist whether enumerated or not. For them the question was enumerated powers, not rights. Justices who respected the original intent of the Founders would not scour the Constitution searching for a clause permitting abortion, they would cite where government derived the power to ban it. Now, to make this clear the 9th Amendment to the Constitution was added stating: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

The American Foundation

The United States was not founded on tradition; quite the opposite is true. It was a radical break from tradition. The traditionalists were Royalists bowing obediently before the king. The Founders started with a premise, one they themselves failed to honor consistently, as has each succeeding generation:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government…

These “truths” were stated as a goal, not an achievement. As such it was the ultimate end to which they sought to establish a government of enumerated powers and unenumerated rights. It was the ultimate destination, not a description of the journey getting there. Given it was written before American independence was secured it could not be an achievement, only an aspiration.

The Founders thus set a goal of breaking with tradition, not honoring it. They saw this nation as one in constant evolution where equality of rights before the law are expanded in the name of principles, not restricted in the name of tradition.

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A blog for the Moorfield Storey Institute: a liberaltarian think tank.

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James Peron

James Peron

James Peron is the president of the Moorfield Storey Institute, was the founding editor of Esteem a LGBT publication in South Africa under apartheid.

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