The Supreme Court Is Dooming America to Repeat History

TGeorge Santayana wrote that those who don’t learn from the past are bound to repeat it. But today’s Supreme Court majority seems to have a different idea of the lessons of the past. They are arguing that it is important to learn from the past because we have to follow its example.

These points are clearly evident in two recent cases. Justice Alito stated in Dobbs that the historical analysis will help settle the question whether any liberty not specifically mentioned in the Constitution is a fundamental right that should be protected by the Constitution. The Constitution protects only rights that are “deeply rooted in this Nation’s history and tradition.” Abortion, he said, does not pass this test. So, regardless of how important it might be today to women’s ability to participate as full and equal citizens in the life of the nation, regardless of how oppressive it might be to force upon them the role of mother, the Constitution offers no protection.

Justice Thomas applied historical analysis to Bruen in a slightly new way. When you’re dealing with a right that is enumerated in the Constitution, he said, or at least when you’re dealing with the Second Amendment, the only restrictions allowed are those that have a historical pedigree: those “consistent with the Nation’s historical tradition of firearm regulation.” A concealed-carry permit regime that required people to show special need, he said, does not pass this test. So regardless of how different circumstances are from the 1860s, or the 1790s, regardless of whether people live differently, or guns fire more rapidly, or magazines hold more bullets, the government is limited to the set of solutions deployed hundreds of years ago, or those that judges are willing to see as a “proper analogue.”

None of these methods is originalalism. Originalism doesn’t mean looking back at historical practice. This means that the Constitution must have a consistent meaning, unless it is amended. It could mean judges need to identify basic rights and ask what rights are recognized in 1791 or 1868. Or it might mean that judges should invalidate exercises of government power that are arbitrary or oppressive—determined in light of contemporary facts and values. Originalism is clear that we must stick to the original meaning of the Due Process clausee. This interpretation does not indicate which one of the meanings it is, and Dobbs’ majority doesn’t attempt to prove that theirs is correct. As for Bruen, the idea that the Second Amendment was understood to freeze the government’s ability to respond to new challenges by restricting it to the regulations that had been enacted in the past is on its face absurd, and again the majority makes no effort to show that its interpretation is right.

Learn more: Liberal Justices Should Think Like Conservatives

These decisions are not good for originalists, who smuggle in controversial and absurd interpretations while maintaining a veneer of modesty. Although originalists claim their method constrains judges’ decisions, recent cases have shown that historians differ on how to interpret historical events. Motivated judges can easily cherry-pick the historical record to support their preferred outcomes—to say nothing of the question of what is a “proper analogue.” Americans should be aghast. This Court’s announcement is a departure from the traditional approach to constitutional interpretation. This is a cruel imposition made by five judges.

This is evident with Bruen. In most constitutional cases, if the government seeks to restrain or infringe on an individual’s constitutional rights—freedom of speech, for instance, or free exercise of religion—the Court will balance the significance of the infringement against the government’s interest. It will do so using one of what constitutional lawyers call the tiers of scrutiny—more or less demanding tests, adapted to the different circumstances in which constitutional issues present themselves. Most often, the government will prevail if it can prove that its actions are necessary in order to protect a compelling interest (e.g. public safety).

But not according to Bruen—at least not with the Second Amendment. Instead, the question is simply whether the government’s regulation is, or is analogous to, one that has been used in the past. This approach has many flaws that are glaringly obvious. Technology changes. Technology changes. There are new problems that need to be solved. This idea of a 21st Century government being limited to the toolsets from the 1860s is completely absurd.

Dobbs has a similar issue, but it’s more subtle and in some cases worse. When you examine history, you’ll see that most societies gave individuals the rights necessary to perform their respective roles. A society which believes that women can and should be able to participate fully and equally in the national life will hold different views on the rights needed to achieve this. That is, aspirationally, today’s society. However, it’s not 1868.

Myra Bradwell brought a case to court in 1872. However, the Illinois state prohibited women from practicing law. Is this discriminatory? Was it unfairly discriminatory? The Supreme Court said no. Justice Bradley explained the reason, in a famous concurring opinion. “The natural and proper timidity and delicacy which belongs to the female sex,” he wrote, “evidently unfits it for many of the occupations of civil life. … The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother.” The through line to Dobbs is clear: if women are destined and fit only to be mothers, forcing motherhood upon them does not violate their rights.

The Dobbs approach tells us that our understanding of fundamental rights—of the rights that every person must have to play their appropriate role in society, to be recognized as a full and equal citizen—is to be determined by an 1860s understanding of those roles. The consequences of that are disastrous for women, for Black people, for the LGBTQ community, for non-Christians—basically for everyone except the white Christian men who held power then. It is not originalalism. This is an judicial decision to define a list of acceptable values and insist they be inscribed in the highest law. The Constitution is not the list of American values. It contains the prejudices, ignorance, and biases that our true heroes fought for. It makes mockery of the sacrifices they made and renders their triumphs insignificant. This is an insult to all Americans and a betrayal for the American experiment.

Read More From Time

Get in touchSend your letters to


Related Articles

Back to top button