On February 14, 1959 Pope John XXIII greeted the landing of an American aircraft at Vatican City. He bestowed a Latin blessing upon the “helicopterum,” a locution invented for the occasion. The new word had to be invented because, obviously, when Julius Caesar crossed the Rubicon, he did not do so in the seat of a Sikorsky.
As L.P. Hartley famously wrote in his 1953 novel The Go-Between, “The past is a foreign country: they do things differently there.” We are separated from the past, but the past is separated from us. Many changes—of thought, of dress, of language, of behavior—have occurred between then and now. The need to introduce into a language of the past of a word defining an object of the present is just one indication of the gap between then and now.
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I find it hard to write today about the disastrous opinion written by Justice Samuel Alito in the case of Dobbs v. Jackson Women's Health Organization. I choke in my craw thinking about the rock-headed stupidity of his argument, but even more so worrying about the future consequences of the decision.
As Jeremy Stahl points out at slate.com,*
[I]t’s clear that Alito lays down the future groundwork for overturning any number of “fundamental” rights that purportedly do not have grounding “in our Nation’s history.”
Further,
[f]or good measure, Alito lets us know which other rights were not “mentioned in the Constitution” or allegedly grounded in our nation’s history: interracial marriage, contraception, the right not to be nonconsensually sterilized, the right to reside with relatives, the right to make decisions about your children’s education, the “right to engage in consensual” and private “same-sex intimacy,” and the right to same sex marriage, just to name a few.
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Here are two ways to look at the stupidity behind Alito’s thinking:
First, Jill Lepore at newyorker.com** reminds us that there were no women involved in the creation of the United States Constitution. Lepore notes that Alito seems somewhat surprised “that there is so little written about abortion in a four-thousand-word document crafted by fifty-five men in 1787.” But there was also nothing at all mentioned, Lepore states,
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.
Applying “the history test,” Lepore says,
disadvantages people who were not enfranchised at the time the Constitution was written, or who have been poorly enfranchised since then.
If the past is a foreign country to us in the present, the present (and all that has occurred since a particular past time) is a foreign country to that past.
Second, my thinking.
Two weeks ago I bought a two-pound bag of onions at the supermarket for $1.49. A day or so later, the weekly circular of a different store advertised an up-coming special price of $.99 for a three-pound bag. What to think? Was I being cheated in some way? Not at all. Like all human beings, I am temporally-bound, subject to the circumstances of the present moment. Short of miraculously obtaining a crystal ball, there was no way I could know what price onions would sell at the following week. I made my purchase based on the knowledge at hand—which is all we can do. Argumentum ad futuram is a logical fallacy.
Similarly, an argument based on the past—which allows for no development or change in human circumstances—is a fallacy. “Because we did it this way, you must always do it this way” is the argument of a hide-bound fool.
Helicopters didn’t exist at the time of the drafting of the Constitution, neither did the internet, or open-heart surgery, or the National Football League—and so on and so forth. Therefore, the framers of the Constitution could not incorporate in that major American document their ideas about those things—should they be allowed or banned, for example. The framers specified the major outstanding freedoms that were contested at the time. They would have had to be clairvoyants to know what freedoms would arise in the future and need to be protected. Perhaps they also relied on an understanding of the famous words of the Declaration of Independence: we are endowed with “unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness,”*** thinking it would not be necessary to go further into enumerating freedoms.
It is a (dangerous) fool’s argument to ignore the demands of the present. And to imagine that all “unalienable Rights” could and need be specified in a single document.
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** https://www.newyorker.com/news/daily-comment/why-there-are-no-women-in-the-constitution
*** See https://slate.com/news-and-politics/2022/05/supreme-court-draft-abortion-leak-roe-overturned-explained.html in which Mark Joseph Stern discusses, among other issues, “‘unenumerated rights’ that lack deep roots in American history.”
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