Where to begin? How to make sense of the completely contradictory Supreme Court rulings last week of New York State Rifle and Pistol Association Inc. v. Bruen, taking away the right of the state of New York to regulate the sale of guns, and Dobbs v. Jackson Women’s Health Organization, granting the state of Mississippi the right to regulate women’s choices about their bodies and health? When do “states’ rights” stand, and when do they fall? Whose freedom is protected, and whose not? How did we come to this moment when the freedom to carry a gun, or not, is considered more inviolable than a woman’s freedom to carry a pregnancy, or not? Much has been written recently about the political maneuvering of the past few decades that led to this moment,[i] but my mind has been swirling around a much longer arc, of the millennia of conquest, politics, and law that led to this moment.
Where to begin? In a course on Western legal systems I TA’d for, the professor began with Roman law. We see the linguistic signature and influence of Roman law in so many of our legal principles today – stare decisis – let the decision stand – the rule of precedent (oops, the current Supreme Court forgot that one); amicus curiae, quid pro quo, affidavit, ex post facto, habeas corpus, subpoena, status quo, guardian ad litem, pro bono – the list could go on and on. Roman law – the law of the conquerors, of a civilization shaped by the glory of conquest, and the system of law that bequeathed to us patria potestas – the rule of the father. Under patria potestas, the father, or the oldest male in the family no matter the age, held the power of punishment, life and death, over all the other members of the household – wives, children, slaves.
Or do we begin with English common law, the basis of so much of US law, shaped not by the people or their representatives, but by court rulings of mostly unelected judges. English common law -- the law that gave us the doctrine of coverture, defined here by 18th century jurist William Blackstone: “By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs every thing. . . . “ Under this doctrine, a married woman could not own property, sign contracts, practice law, sue for divorce, have custody of her children, or be considered a responsible moral or legal agent in her own right.
Or perhaps we should begin with canon law -- the law of papal decrees that have influenced much US law on marriage, divorce, contraception and abortion, and legal personage.[ii] Canon law – shaped by theological debates on whether or not women should exist, ultimately deciding we are a necessary evil for purposes of reproduction.[iii] Canon law – the law that gave us the “witchburnings” – the demonization of women as agents of the devil and the burning alive of midwives for the crime of easing the pain and suffering of women in childbirth. Canon law – that to this day denies to women bodily autonomy surrounding reproduction, for their role in life is to carry the sacred male seed to its intended purpose.[iv] Canon law – the law that also brought us the Doctrine of Discovery – the Papal Bull that any land not occupied by Christians was available to be “discovered” and claimed by Christian conquest. It became embedded in US law in Johnson v. McIntosh, where Justice John Marshall wrote, "that the principle of discovery gave European nations an absolute right to New World lands.” Papal law -- bestowing nearly a divine blessing on guns as weapons of conquest.
Or should we begin with the writers of the Constitution -- wealthy, white, property-owning, many slave-owning men, determined to structure a government that would ensure the protection of their property and status, a government not to be entrusted to the rabble of common men. Thus, the election of Senators was to be determined not by the people, but by state legislators. Nor was the election of the President to be entrusted to the people, but rather to elite electors, the electoral college – an antiquated, anti-democratic institution that has repeatedly thwarted the will of the majority of citizens of this country. The Constitution was shaped in a time when even the most liberal of the writers, John Adams, responded to his wife, Abigail Adams’s plea to “remember the ladies” in the new document he was forging, for, as she said, “all men would be tyrants if they could”: ”As to your extraordinary Code of Laws, I cannot but laugh. . . . We know better than to repeal our masculine systems. . .” He went on to say that to give these up, “ . . .would compeatly [sic] subject Us to the Despotism of the Petticoat” (Rossi, 10-11). He said further in a letter to James Sullivan[v], that to give in to this demand would lead them down a dangerous slippery slope to include even younger men and men without property. “There will be no end of it. New claims will arise . . . It tends to confound and destroy all distinctions, and prostrate all ranks to one common level” (Rossi, 15). Ah, the horror of equality.
Or should we begin with Marbury v. Madison, the 1803 Supreme Court decision that firmly established the principle of judicial review – the power of the federal courts to decide whether or not laws enacted by Congress and state legislatures are constitutional, making the Supreme Court the more powerful, not the co-equal of the other two branches of government as originally intended. Ultimately, this laid the power to decide the fate of a nation in the hands of nine unelected individuals with tenure for life, and enshrined the Constitution with a sacred, almost god-given quality, as if it were not a document created by elite white men determined not to let a distrusted majority rule.
Granted, since the founding of the United States, several efforts to make amends for the founders’ wrongs have passed – the 13th amendment ending slavery (except in cases of imprisonment -- slavery by another name); the 14th, granting equal protection and due process of law to all citizens (though Indians are not to be counted and for the first time citizens are designated as “males”); the 15th, declaring the right to vote shall not be denied or abridged on account of race, color, or previous condition of servitude (though not on account of sex); the 17th, which allows for the election of US Senators directly by the people (meaning men) of each state; the 19th which finally grants suffrage to women; the 23rd, granting citizens living in Washington, D.C. the right to vote in presidential elections; the 24th, forbidding the imposition of a poll tax requirement on the ability to vote; and the 26th, granting the right to vote to 18-year-olds. Landmark rulings, like Brown v. Board of Education, Yick Wo v. Hopkins, Loving v. Virginia, Griswold v. Connecticut, Roe v. Wade, and Obergefell v. Hodges[vi], have expanded rights and liberties. Yet to this day, the US Constitution fails to guarantee equality on the basis of sex.
Through all the twists and turns of the sex equality cases – Reed v. Reed, Frontiero v. Richardson, etc., the Supreme Court has come closer to granting the same standard of “strict scrutiny” to cases of sex discrimination that it grants to cases involving race, religion, and national origin, but not quite.[vii] Given the reluctance of the Court, that would require the enactment of the Equal Rights Amendment to the Constitution which guarantees that “equality of the law will not be denied or abridged by the United States or any state on account of sex.” Failed in its initial attempt, the ERA is now ratified in the required number of states, but Congress has failed to act on installing it in the Constitution. The late Justice Ruth Bader Ginsburg argued that a better ground for Roe would have been on the principle of equal protection on the basis of sex, rather than the weaker foundation of privacy, a right implied but not explicitly stated in the Constitution, and as we have seen, far too easily undone. But we have no guarantee of equal protection on the basis of sex. Even if we did, in 1974, the Court ruled in Geduldig v. Aiello that pregnancy is not a sex-related condition. Moreover, in a sharp break from precedent, the recent Dobbs decision overturning Roe v. Wade requires only the “rational relation” test of any state laws regarding abortion, rendering it the weakest possible test as to whether or not the state has a legitimate reason for denying a woman’s right to life and liberty.
One might go on to ask, who determines whether or not a law is “rational.” I remember the looks of astonishment, confusion, anger, and disgust on the faces of the brilliant and passionate women in a course I taught in the community on women and the law when they asked this question, realizing the vast discrepancy between what they considered to be reasonable, and what the majority on the Court did.
Perhaps it makes the most sense to begin with the Western origins of patriarchy itself, and the ways it became enshrined in religion and codified into law – the Hebraic, Assyrian, Mesopotamian, Babylonian laws that established women as the property of men; that divided women by their given status as wives, concubines, and slaves; that established laws of adultery – a crime only the wife could commit; of rape – a property crime against another man, punishable by forcing the raped woman to marry the rapist; and abortion – if caused by the blow of a man to another man’s daughter – a monetary fine, for this is a property crime after all, or if caused by a married man, then his own wife will be similarly treated, but if induced by the woman herself, such an act was equivalent to high treason, for which “’she shall be impaled and shall not be buried’” (Middle Assyrian Law (MAL) §53 quoted in Lerner, 120.)
Where to begin indeed. How to make sense of a system of laws assuming it to be reasonable, or unbiased, or above politics, and not shaped by millennia of those who would bend the law to their purposes? If, as Martin Luther King, Jr. said, the arc of the universe is long, but does bend toward justice, it also has its twists and turns. Historian Gerda Lerner once counseled my students to patience, reminding them of how very long that arc is, of how far we have come from those days of the ancient Assyrian laws -- a useful perspective, perhaps, and yet we still hear their echoes. Much has been made of the fact that this is the first time the Court has interpreted the Constitution in such a way as to repeal rights and freedoms it had previously acknowledged. It is right to look upon that with concern for what may be next, for at the moment, it seems the arc is bending back the way it came.
Endnotes
[i] Mary Ziegler’s piece is one of the best I’ve seen. Opinion | Roe’s Death Will Change American Democracy - The New York Times (nytimes.com)
[ii] To see the influence of canon law and the Catholic church on the recent decision overturning Roe, I recommend reading the response in the National Catholic Register which blatantly states that the imposition of the views of the Catholic church onto US law was the result of a half-century-long campaign to recruit and install “able and willing” lawyers onto the Supreme Court. Dobbs Decision: A Monumental Moment in the March for Equal Rights for Every Human Life| National Catholic Register (ncregister.com)
[iii] Aquinas, Thomas. Summa Theologica. Qu. 92, The Creation of Woman.
[iv] See my earlier post on Rosemary Radford Ruether, where she wrote, “Woman is taught that the worst of sins, the worst of crimes, is to deflect the male seed from its intended course in her womb. This is more sinful than rape, for the rape of a woman does not interfere with the purposes of the seed, while contraception wastes the precious seed and defeats its high purposes. . . . She must obediently accept the effects of these holy male acts upon her body, must not seek to control their effects, must not become a conscious decision maker about the destiny of her own body” (Sexism and God-Talk, 261).
[v] James Sullivan was a lawyer and politician who served on Massachusett’s ratifying convention for the US Constitution and later became the governor of the state.
[vi] Brown v. Board of Education (1954) outlawed segregation on the basis of race in public schools. Yick Wo v. Hopkins (1886) ruled that a law that is race-neutral on its face, but prejudicial in its administration, is unconstitutional. Loving v. Virginia (1967) struck down all state laws banning interracial marriage. Griswold v. Connecticut (1965) permitted the use of contraceptives by married couples only without government interference. It would not be until 1972 in Eisenstadt v. Baird that this right would be extended to unmarried individuals. Obergefell v. Hodges (2015) guaranteed the right to marry to same-sex couples. The now overturned Roe v. Wade, protected women’s rights to abortion without state regulation or interference, at least up until the second and third trimesters.
[vii] The term “strict scrutiny” refers to the highest standard of evaluation a court applies in determining the constitutionality of state and federal law. Under “strict scrutiny” the government interest in violating equal protection or due process of law must be “compelling,” and the relationship to the state’s interest must be “narrowly tailored.” The next highest is that the government interest be “exceedingly persuasive” and “substantially related.” The intermediate standard is that the government interest be “important” and “substantially related.” Finally, the rational relationship test, the lowest standard, is that the state’s interest be “legitimate” and “rational.”
Notes
Aquinas, Thomas. St.Thomas Aquinas on Politics and Ethics: A New Translation, Backgrounds, Interpretations. Paul E. Sigmund, Trans. and Ed. New York: W.W. Norton & Co., 1988.
Blackstone, William. Commentaries on the Laws of England. (1765-1769). Lonang Institute, 1769.
Ginsburg, Ruth Bader, “Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63, NCL. Rev 375, 382, 386 (1985).
Lerner, Gerda. The Creation of Patriarchy (Women and History, V. 1). New York & London: Oxford University Press, 1987.
Opinion | Roe’s Death Will Change American Democracy - The New York Times (nytimes.com)
Rossi, Alice S. ed., The Feminist Papers: From Adams to de Beauvoir. New York & London: Columbia University Press, 1973.
Ruether, Rosemary Radford. Sexism and God-Talk: Toward a Feminist Theology. 10th Anniversary ed. (Boston: Beacon Press, 1983, 1993).