Does Justice Alito think America's founders were stupid? Dobbs ruling proves he does
In Dobbs v. Jackson Women’s Health Organization, Justice Samuel Alito and his conservative colleagues struck down a woman’s right to choose abortion because “the Constitution makes no mention of abortion” and “a right to abortion is not deeply rooted in the Nation’s history and traditions.”
These justices share a jurisprudence premised on the proposition that the nation's founders were stupid.
The nation’s original founders adopted the Fifth Amendment protecting “liberty” against the federal government in 1789. Following the Civil War, in 1866, a second group of founders adopted the Fourteenth Amendment protecting “liberty” against the whims of the states and to assure “equal protection of the laws.” It’s true that a right to abortion was not mentioned in either of those debates.
If we are to interpret our founding documents to mean only what the founders specifically envisioned at their enactments, there would be no right to abortion. Neither would there be a right to contraception, interracial marriage or same-sex marriage. There would also be very few other rights for women, who were considered the property of their husbands, or at least subordinate to and dependent upon their husbands at both of those dates. Nor would there be freedom of expression on the internet, which did not exist at the time, and the Fourth Amendment’s protection against “unreasonable searches and seizures” would not apply to automobiles or cellphones, which also did not exist at that time.
But the founders knew they were not simply solving problems of 1789 or 1866. They were writing for the ages. Only stupid people would have created a constitution for the ages expecting that it would be interpreted hundreds of years later based only on conditions as they existed in 1789 or 1866. These men were not stupid. Both groups of founders had lived through and participated in some of the greatest changes in human history.
The founders of 1789 had seen the development of new concepts of liberty and equality in a world heretofore governed by rigid autocracy and suppression of the individual. Just 100 years earlier, William and Mary had signed a Bill of Rights limiting the powers of the Crown and requiring due process in criminal trials, and John Locke had asserted the primacy of reason and individual freedom over authoritarian rule, with separation of church and state, the right to own property, and the need to recognize the innate rights of the people. Science had only recently been recognized as a means of understanding the world. Locke, Rousseau, Diderot, Montesquieu, and others argued over the nature of society and human governance, and the founders of 1789 followed with interest.
The founders of 1866 had seen extraordinary technological change and “a new birth of freedom” with the end of slavery. They looked back upon almost 90 years of the entirely new experiment, in which geographic expansion beyond the imagination had created an unprecedented land of opportunity, new technologies of transportation and communications that had begun to bind the nation together in unforeseen ways. They knew the inherent contradiction of slavery had nearly brought the entire enterprise to ruin.
The founders knew change was coming. They knew they were writing for a future in which human understanding would continue to evolve, just as it had evolved in their own eras.
This understanding applies with particular force to the capacious language of our Bill of Rights. The terms “freedom of speech,” “liberty,” “property,” “due process,” and “cruel and unusual punishment,” for example, articulated our greatest breaks with our autocratic past. Not surprisingly, they were left entirely open-ended and undefined as to their scope and reach.
The founders did not limit the scope of “liberty” with examples. They did not identify particular processes or freedoms, and they did not list specific unacceptable punishments. They knew attitudes and mores would change, and that these fundamental rights would apply in the future in ways they might not have recognized in their times. And all of these rights have evolved in countless ways to apply to conduct and in circumstances that the founders quite literally could not imagine.
While the justices prefer to look backward to a halcyon time when liberty was a new concept and women had virtually no rights, the founders looked forward, and they used terminology — like “liberty” — that was deliberately open-ended and susceptible to being applied in view of the realities of later times that they could not remotely foresee.
Only a stupid person would have chosen to limit our great charter to events and attitudes of that particular time. The founders were not stupid. But the conservative justices apparently think they were.
We are paying and will pay an awful price.
Bill Jordan of Akron is an emeritus professor of law at the University of Akron School of Law.
This article originally appeared on Akron Beacon Journal: Opinion: America's founders were smarter than today's Supreme Court
