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"Supreme Court Justice Samuel Alito is surprised that there is so little written about abortion in a four-thousand-word document crafted by fifty-five men in 1787. As it happens, there is also nothing at all in that document, which sets out fundamental law, about pregnancy, uteruses, vaginas, fetuses, placentas, menstrual blood, breasts, or breast milk. There is nothing in that document about women at all. Most consequentially, there is nothing in that document—or in the circumstances under which it was written—that suggests its authors imagined women as part of the political community embraced by the phrase “We the People.” There were no women among the delegates to the Constitutional Convention. There were no women among the hundreds of people who participated in ratifying conventions in the states. There were no women judges. There were no women legislators. At the time, women could neither hold office nor run for office, and, except in New Jersey, and then only fleetingly, women could not vote. Legally, most women did not exist as persons.
...Alito cites a number of eighteenth-century texts; he does not cite anything written by a woman, and not because there’s nothing available. “The laws respecting woman,” Mary Wollstonecraft wrote in “A Vindication of the Rights of Woman,” in 1791, “make an absurd unit of a man and his wife, and then, by the easy transition of only considering him as responsible, she is reduced to a mere cypher.” She is but a part of him. She herself does not exist but is instead, as Wollstonecraft wrote, a “non-entity.”
...If a right isn’t mentioned explicitly in the Constitution, Alito argues, following a mode of reasoning known as the history test, then it can only become a right if it can be shown to be “deeply rooted in this Nation’s history and tradition.” As I have argued, the history test disadvantages people who were not enfranchised at the time the Constitution was written, or who have been poorly enfranchised since then. Especially important is the question of who was enfranchised at the time of the ratification of the Fourteenth Amendment, in 1868, the nation’s second founding, since many arguments defending abortion rights (and many other rights, too) turn on the equal-protection and due-process clauses of that amendment. Here, too, Alito is baffled to discover so little about abortion and women.
He might have consulted the records of the U.S. Senate from the debate over the Fourteenth Amendment, when Jacob Howard, a Republican senator from Michigan, got into an argument with Reverdy Johnson, a Democrat from Maryland. Howard quoted James Madison, who had written that “those who are to be bound by laws, ought to have a voice in making them.” This got Johnson terribly worried, because the Fourteenth Amendment uses the word “person.” He wanted to know: Did Howard mean to suggest that women could be construed as persons, too?
mr. johnson: Females as well as males?
mr. howard: Mr. Madison does not say anything about females.
mr. johnson: “Persons.”
mr. howard: I believe Mr. Madison was old enough and wise enough to take it for granted that there was such a thing as the law of nature which has a certain influence even in political affairs, and that by that law women and children are not regarded as the equals of men.
Link
Women are indeed missing from the Constitution. That’s a problem to remedy, not a precedent to honor.
...Alito cites a number of eighteenth-century texts; he does not cite anything written by a woman, and not because there’s nothing available. “The laws respecting woman,” Mary Wollstonecraft wrote in “A Vindication of the Rights of Woman,” in 1791, “make an absurd unit of a man and his wife, and then, by the easy transition of only considering him as responsible, she is reduced to a mere cypher.” She is but a part of him. She herself does not exist but is instead, as Wollstonecraft wrote, a “non-entity.”
...If a right isn’t mentioned explicitly in the Constitution, Alito argues, following a mode of reasoning known as the history test, then it can only become a right if it can be shown to be “deeply rooted in this Nation’s history and tradition.” As I have argued, the history test disadvantages people who were not enfranchised at the time the Constitution was written, or who have been poorly enfranchised since then. Especially important is the question of who was enfranchised at the time of the ratification of the Fourteenth Amendment, in 1868, the nation’s second founding, since many arguments defending abortion rights (and many other rights, too) turn on the equal-protection and due-process clauses of that amendment. Here, too, Alito is baffled to discover so little about abortion and women.
He might have consulted the records of the U.S. Senate from the debate over the Fourteenth Amendment, when Jacob Howard, a Republican senator from Michigan, got into an argument with Reverdy Johnson, a Democrat from Maryland. Howard quoted James Madison, who had written that “those who are to be bound by laws, ought to have a voice in making them.” This got Johnson terribly worried, because the Fourteenth Amendment uses the word “person.” He wanted to know: Did Howard mean to suggest that women could be construed as persons, too?
mr. johnson: Females as well as males?
mr. howard: Mr. Madison does not say anything about females.
mr. johnson: “Persons.”
mr. howard: I believe Mr. Madison was old enough and wise enough to take it for granted that there was such a thing as the law of nature which has a certain influence even in political affairs, and that by that law women and children are not regarded as the equals of men.
Link
Women are indeed missing from the Constitution. That’s a problem to remedy, not a precedent to honor.
