Republished with permission from Lucian K. Truscott IV

The sad thing about this headline, which certainly applies in the state of Arizona after its Supreme Court decision yesterday, is that we are already in the 1800’s in some important ways. Justice Thomas took us back to the founding of the country in his decision in New York State Rifle and Pistol Association v. Bruen. He found that governments seeking to control the ownership and use of firearms “must demonstrate that the regulation is consistent with the Nation’s historical tradition.” The short version of the lengthy and somewhat garbled reasoning presented by Thomas amounts to this: there weren’t any laws limiting the ownership or carrying of firearms on the day the Constitution was signed in 1787, so there shouldn’t be any laws like that now.

For the sake of space and readers’ attention spans, I’m going to resist just filling the next six lines of this column with exclamation points. But that’s how much sense Thomas’ use of the “history and tradition” obsession of originalists on the Supreme Court makes. The theory is based on a 1997 decision, Washington v. Glucksberg, written by Chief Justice William Rehnquist, in which he found that “the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, “deeply rooted in this Nation’s history and tradition.” 

Now, it would behoove us to pause for a moment and note that you will not find in the 14^th Amendment, which contains the Due Process Clause, the words “deeply rooted in this Nation’s history and tradition,” probably because the writers of the 14^th Amendment in 1868 were painfully aware that the nation had only three years previously fought a Civil War to end what could be termed one of this nation’s deeply rooted histories and traditions, namely slavery.

In the Dobbs decision, Justice Samuel “I’m turnin’ the clock back as fast as I can” Alito included a lengthy footnote listing the 28 out of 37 states which in 1868 had laws on their books criminalizing abortion. Why did he feel the necessity to provide this list of states? History and tradition, of course! He was busy establishing that there was no history and tradition of permitting abortion when the 14^th Amendment was written because so many states—a majority of them!—had laws forbidding it. So how could the 14^th Amendment protect a woman’s right to an abortion, as the Roe decision said it did, when there was no history and tradition of a woman’s right to an abortion in this country at the time the Due Process clause was written?

Using this logic, of course, would lead us down the rabbit hole in which we find ourselves most recently in the Arizona Supreme Court decision handed down yesterday, which upholds a law written in 1864 before Arizona was even a state or had a legislature or governor because…well, because history and tradition, that’s why. 

Others, Heather Cox Richardson among them, have pointed out that the 1864 law does not forbid abortion as such, but rather forbids the use of poison or instruments “with the intention to procure the miscarriage of any woman then being with child,” alongside other restrictions on engaging in or having anything to do with a duel or cutting out someone’s tongue or eyes or slitting his or her lips. The 1864 law is in fact a kind of all-purpose forbidding of evil stuff men might do “in the chaos of the Civil War from inflicting damage on others,” as Richardson put it.

But damn it, a law’s a law, the Arizona Supreme Court seemed to say, and it’s part of our state’s history and tradition when it comes to controlling women, so there it is.

What other histories and traditions might we find? Women not having the right to vote is one. Having a right to own slaves is another. Dueling—that is, settling disputes between men using pistols—is another. Lynching escaped slaves is another one, along with lynching Black men for any reason that gangs of whites in the Deep South deemed proper and necessary.

You see where this takes us, don’t you? No place we would like to go, like the 1800’s, is where. Or maybe that is exactly the place that the Republican Party and its Supreme Court poodles want to take us. In fact, it is! Reading Alito’s Dobbs decision, you cannot help but see his delight as he thumbs through the history books cherry-picking stuff he likes. For example, his citation of the 28 states with laws against abortion in 1868 fails to give any weight at all to the nine states that had no laws on their books forbidding abortion. Doesn’t that count for anything when it comes to the almighty history and tradition the right wing originalists on the court are so obsessed with?

Nope. Nor do the originalists like Alito make any attempt to deal with the fact that it was precisely their idea of history and tradition that segregationist foes of Brown v. Board of Education cited at the time it was decided. Want to hear how they saw it? According to the Yale Law Journal, the segregationists “defended Plessy as properly interpreting the Constitution’s equality guarantee by counting states whose laws segregated education in 1868—the majority of which were states of the former Confederacy that were resisting Reconstruction.” 

Surprise, surprise! In Alito’s list of the states that criminalized abortion at the time of the writing of the Fourteenth Amendment are all of the “states of the former Confederacy.” And it should be added, those states of the former Confederacy, each and every one of them, are among the states that have criminalized abortion since the Dobbs decision ended a woman’s right to control her own reproductive health.

Here is what I think is going on: so-called “conservatives,” including the entire Republican Party and its de facto nominee for president, are bound and determined to strip away the rights to privacy that previous Supreme Courts have cited in establishing the right to contraception, to abortion, to same sex marriage, and to have whatever kind of sex you desire in the privacy of your bedroom—all rights that did not exist before Griswold v. Connecticut was decided in 1965. 

Additionally, these so-called conservatives want to strip from us our right to walk down a street, or to enter a school, or to attend a movie in a theater, or to buy something at a public shopping mall without fearing for our lives. How are we supposed to do the things I just listed not knowing whether the person next to you is carrying a concealed weapon, which is now allowed without a permit, training, or any other restrictions in state after bloody state? 

See, Thomas and Alito and the rest of them think people should have what amounts to a brand new privacy right to walk around concealing the fact that you are armed from your fellow citizens. But they are determined to take away your privacy right to marry the person you love no matter whether they are the same gender as you are, or indeed, if they choose to be no gender at all. They want to take away the privacy right granted in Lawrence v. Texas, which overturned a law in that state that criminalized “non-reproductive” sexual activities between consenting adults no matter if they are the same sex, which would include sodomy between any consenting adults.

Think about that for a moment. These are the private parts of our lives that these right-wing Republicans want to re-assert control over. Who you marry. Who you have sex with. What sort of sex you choose to have. Whether you want to carry a pregnancy to term. And they want to do it because back in the 1800’s, most states had laws forbidding their citizens from exercising these private rights. 

You have to ask yourself what could be next, don’t you? Will these so-called originalists seek to overturn Brown v. Board of Education because in 1868, at the time the Due Process Clause was written, there was no “history and tradition” of integrated schools in this country? With segregation in 1868, there was a “tradition” that went so deep that states which established schools and provided free education to white children did not provide money to pay for the education of Black children. In the deep south as recently as the 1950’s and 1960’s, school buses picked up white children and took them to school, while along the same roads, Black children had to walk to school or be driven by a family member who had a car.

And Black citizens were made to pay their taxes to pay for those segregated all-white schools and school buses for white but not Black kids.

There’s a history and tradition for you. I’m just waiting for Alito or Thomas to dig through the history books looking for legal logic from the 1800’s behind that.