Recent decisions from the U.S. Supreme Court mean that history hangs particularly heavy over this year’s holiday weekend. In three of those decisions, Bruen, Dobbs and West Virginia vs. EPA, the court has expanded rights of gun ownership, rolled back the federal right to abortion and made it much harder to mitigate climate change, all in the space of a few days. Its conservative majority has moved mostly in lockstep to determine the future by deploying the past. With a narrow and radical slant on our past, they’ve mistold the story of how various rights were or weren’t protected to argue that constitutional guarantees mean something or nothing.
But how are we supposed to extrapolate from the late 1700s to what should or shouldn’t be permissible in a contemporary America with AR-15s, internet gun purchases and medical abortion? Even if history told an uncomplicated story — and it never does — its hold over the present would be limited.
You don’t need to be terribly pessimistic to fear that the future will now be darker and more deadly after these rulings, with more mass shootings, more women’s lives in danger and more deaths due to extreme weather events. This is all thanks to unelected justices who have peculiar — and sometimes quite incoherent — understandings of American history.
For long swaths of that history, the U.S. seemed to Americans and foreigners alike to be the land of the future: a beacon of liberty in a world of tyrants, a land of promise for migrants everywhere, an engine of innovation and a hotbed of invention. Yet now, as the country’s politics polarizes, trust in its institutions plummets, the economy slows and infrastructure crumbles, the American dream may be turning into a nightmare, as Martin Luther King feared it might in 1967. The land of the future is quickly becoming yesterday’s news, a country held back by history and even poisoned by its past.
In Dobbs, the majority overturned 50 years of history by ruling that Roe v. Wade had been wrongly decided. They did so largely on the grounds that “the right to abortion is not deeply rooted in the nation’s history and tradition.” To back up this assertion, the majority cited authorities from the English common law going back to the 17th century, state laws from the 19th century onwards, and the situation at the time of the 14th Amendment in 1868 when, it noted, all states then criminalized abortion.
In response, professional historians quickly pointed out that the justices had cherry-picked their evidence and wholly ignored the contexts in which abortion had been banned in the past, for example under slavery. Their English legal authorities, like Sir Matthew Hale and Sir William Blackstone, respectively believed in witches and argued — quite correctly for his own time, though hardly for ours — that wives had no legal personality but were subsumed under their husbands in marriage. Centuries-old misogyny evidently carried greater weight than the decades-long protection of a basic right assured almost everywhere else in the world.