Supreme Court’s reliance on ‘historical analysis’ to end abortion rights and limit gun control could overturn other historical precedents, perhaps even Brown V. Board

On the way to the pleadings in Brown v. Commission, Thurgood Marshall, the civil rights icon advocating for Southern school integration, feared the legislative history surrounding the case. Although he was convinced that the Fourteenth Amendment, adopted shortly after the Civil War, granted equal rights to freed slaves, Marshall remained concerned about the argument advanced by his opponent, John Davis. Since 24 of the then 37 states in the union required or permitted separate schools when the amendment was passed, Davis argued, the constitutional provision could not have required integration. “It looked like … Davis would win the historical argument hands down,” recalls one of the historians assisting Marshall’s legal team.

Chief Justice Earl Warren’s unanimous opinion allayed Marshall’s fears. While the Court’s assessment of the “circumstances surrounding the passage of the Fourteenth Amendment in 1868…sheds some light,” Warren wrote, the Court would not become beholden to the historical record of an inopportune time. Instead, he applied the amendment’s promise of equality to the conditions as they existed in 1954.

Brown remains a benchmark for the Court, even for conservative judges whose reliance on American “historical tradition” contrasts sharply with Warren’s reasoning. Strict application of the rigid historical analysis favored by the six Republican-appointed justices on the Court today could theoretically overturn cases involving birth control rights and same-sex marriage, and if carried to its logical conclusion , threatening to cancel even Brown.

In two of the Court’s landmark cases, this term—Dobbswho overturned the right to abortion, and Brownthat clamped down on restrictions on guns – the court’s conservative justices largely based their rulings on “historical analysis” dating back not just to the formation of the Constitution, but to colonial and English legal systems reaching into the Middle Ages.

Basing their decisions on the opinions of archaic lawmakers who branded women witches in colonial times, banned abortion in the mid-1800s long before women got the right to vote, and never faced weapons capable of killing dozens of people in seconds. does not bother the court curators.

Their belief in the correctness of their approach was fully on display in Dobbswho knocked down Roe vs. Wade, the 1973 case establishing the constitutional right to abortion. Judge Samuel Alito concluded that because three-quarters of the states had outlawed abortion when the Fourteenth Amendment was enacted — almost identical to the number of segregated schools — the “inevitable conclusion is that the right to abortion is not is not deeply rooted in the history and traditions of the nation”. .”

So obsessed with the values ​​of 1860s state legislators, Alito took the unusual step of including a 22-page appendix summarizing laws “criminalizing abortion” when ratifying the Fourteenth Amendment.

With Judge Clarence Thomas Brown The opinion appeared equally anachronistic when it compared the ‘daggers’ of medieval England to ‘modern handguns’ in its lengthy ‘historical analysis’ of gun control. Page after page, Thomas examined legislation arising from England’s civil wars, 18th-century treaties and the decisions of English courts, as well as laws passed by colonial governments. His assessment was more like an academic study worthy of a legal journal than a rational attempt to apply the principles engendered in the Second Amendment to contemporary situations.

No matter how obscure or outdated their methodology seems, the Court’s conservatives have wholeheartedly embraced this doctrine. Judge Amy Coney Barrett even filed a concurring opinion in Brown just to dispel any notion that the Court should “endorse the unconditional reliance on historical practice of the mid to late 19e century to establish the original meaning of the Bill of Rights. For her, few sources discovered beyond the founding generation should “bear on the original meaning of the Constitution”.

A major drawback of this approach is that judges tend to choose laws and customs that support their preferences or simply draw the wrong conclusion from their historical review, as Justice Stephen Breyer effectively explained in his dissent in Brown.

But there is something much more important at stake than trying to accurately decipher the principles of the past. While tradition and history are relevant, if the nation relies too heavily on the philosophy, morality, and viewpoints of the founding fathers or their predecessors, it will remain stuck in time. This will, in most cases, lead to conservative results that cling to traditions and prevent the country’s legal system from adapting to the ever-changing outlook of society.

Aware of this dynamic, Warren considered the historical context surrounding the Fourteenth Amendment, but ultimately championed the application of broad constitutional concepts to modern conditions in Brown. “In addressing this problem, we cannot go back to 1868 when the amendment was passed, or even to 1896 when Plessy v. Ferguson has been written,” he proclaimed, referring to the long-standing precedent legalizing segregation. “We must consider public education in…its present place in American life.”

Today’s conservative majority, on the other hand, seems eager to go back to 1868, 1787 and beyond.


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Patrick F. Williams