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Alito’s account of “history and tradition” ignores the most salient aspect of the Fourteenth Amendment’s history: the horrific abuses that led the Framers of the Fourteenth Amendment to push through changes to the Constitution to broadly guarantee the protection of substantive fundamental rights. The through line from the abolitionist critiques of slavery to the debates over the Thirteenth and Fourteenth Amendments was the idea that slavery was built on the denial of bodily integrity, coerced reproduction and the rape of enslaved women, and the tearing apart of Black families. Alito’s sweeping condemnation of unenumerated fundamental rights ignores the fact that the Fourteenth Amendment sought to guarantee rights to bodily integrity and to marry and raise a family, and the right to decide for oneself whether, when, and with whom to form a family.
In short, reproductive freedom is in the Constitution. Alito simply refuses to grapple with the Constitution’s true history.
Instead, Alito relies heavily on state practice, insisting that because abortion was widely prohibited at the time of the Fourteenth Amendment’s ratification in 1868, state bans on abortion are constitutionally permissible.
Alito’s state-practice argument is wrong and deeply dangerous: The fundamental rights of Americans do not rise or fall depending on a head count of state practice in 1868. The Fourteenth Amendment changed the Constitution to correct a long history of subordination and suppression of fundamental rights, not freeze into amber state practices of the day. But Alito’s majority opinion shows no interest in understanding the Fourteenth Amendment.
The author makes some salient points about the problems regarding “originalism”. If liberal justices are going to get execrated for judicial activism, it would behoove those conservative justices not to use ideology under the guise of originalism to get the outcome they seek…
In short, reproductive freedom is in the Constitution. Alito simply refuses to grapple with the Constitution’s true history.
Instead, Alito relies heavily on state practice, insisting that because abortion was widely prohibited at the time of the Fourteenth Amendment’s ratification in 1868, state bans on abortion are constitutionally permissible.
Alito’s state-practice argument is wrong and deeply dangerous: The fundamental rights of Americans do not rise or fall depending on a head count of state practice in 1868. The Fourteenth Amendment changed the Constitution to correct a long history of subordination and suppression of fundamental rights, not freeze into amber state practices of the day. But Alito’s majority opinion shows no interest in understanding the Fourteenth Amendment.
This Court Has Revealed Conservative Originalism to Be a Hollow Shell
The Supreme Court’s right-wing justices claim to be originalists, but then they pick and choose the history that fits their ideological preferences.
www.theatlantic.com
The author makes some salient points about the problems regarding “originalism”. If liberal justices are going to get execrated for judicial activism, it would behoove those conservative justices not to use ideology under the guise of originalism to get the outcome they seek…