Supreme Court Justice Samuel Alito’s draft opinion overturning Roe v. Wade relies heavily on the words of Sir Matthew Hale, an Englishman who became the Lord Chief Justice of England in 1671. Alito’s draft opinion cites Hale an astonishing number of times (nine by my count). Note that Hale was a contemporary of Oliver Cromwell, and King Charles II.
England and Scotland were still different countries back then. When he died in 1676 the founding of the United States was 100 years in the future, and the ratification of the United States Constitution came 13 years later.
But Alito is comfortable to interpret the United States Constitution in the Year of Our Lord 2022 based on the writings of this 17th Century English judge. This is exactly 346 years after Hale died. Analyzing the Constitution based on original intent may be a thing, but stretching original intent to include a dude who died more than a century before the Constitution was actually written is way more than a stretch. It is judicial activism written in bright neon lights.
Lord Chief Justice of England Sir Matthew Hale had some other, peculiar, writings about English law. In 1662 he famously presided over the trial of two young women who were accused of witchcraft, Amy Denny and Rose Cullender. They were duly convicted and sentenced to death by Hale. Is Alito cool with this piece of Hale’s jurisprudence? Hale also established the notion in English law that marital rape was impossible because “[t]he husband cannot be guilty of a rape committed by himself upon his lawful wife for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband which she cannot retract.” Is Alito cool with non-consensual marital intercourse?
Lord Chief Justice Hale also had a problem with women making accusations of rape. His peculiar jurisprudence gave rise to what became known as the “Hale Instruction,” by which juries were instructed that in weighing the evidence in cases of alleged rape, jurors (all men, in Hale’s time and for long after) needed to consider a series of factors. “Did the woman cry out? Did she try to flee? Was she of “good fame” or “evil fame”? Was she supported by others? Did she make immediate complaint afterward?”
The Hale Instruction survived in American law until the late 1970s and early 1980s. It is now, thankfully, tossed into the dustbin of history.
Does Alito really mean to align himself with Hale’s grossly antiquated understandings of the law of witchcraft and rape? I doubt it, but he also seems not to care that he has done so. In his zeal to find supportive authority to reverse Roe he ignores evidence that the supportive authority upon which he relies is damnably suspect. He sees only what he wants to see, and ignores the blatant quackery of the source of his authority.
Roe has been the law of the land for almost 50 years, and in my eyes it is amply supported by the 4th, 9th, and 14th Amendments. Especially the 9th Amendment, which mandates that “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The right to personal privacy, the right to be left alone from government interference, lives here.
To me this means that there are Constitutional rights not explicitly articulated in the Constitution that are in fact part of the Constitution. In 1928, Supreme Court Justice Louis Brandeis wrote that under the Constitution there is a “right to be left alone.” Put another way, there are some areas of private life in which the government has no damn business interfering. The right to bodily autonomy fits neatly within the right to be left alone.
Alito’s draft opinion would be the first time in American history that the Supreme Court has abolished Constitutional rights that it previously recognized. He, and his four compatriots (Justices Thomas, Gorsuch, Kavanaugh and Barrett) are substituting their own personal judgment over the personal liberties of 330 million. Five versus 330 million? This is judicial activism written in bright neon lights.
Darrell M. Allen is a retired employment and criminal defense attorney. He lives with a nice Republican lady north of I-40, where they run two head each of dog and cat.