By Thomas Lecaque
Samuel Alito’s draft majority ruling striking down Roe v Wade is everywhere in the news right now, for good reason. And in the midst of it, on page 24, he writes, “The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions.” [1] And this idea, that abortion rights specifically are a post-1973, revolutionary innovation is wrong—clearly wrong, against the historical record, as so many scholars have spent this week pointing out. There is always a way to claim things do not have a long history. We call it ignoring the past. This rhetorical move on Alito’s part is not fact, not even so convenient as fiction—it is propaganda, it is the manipulation of the record to push an ideology. It is the same rhetorical trick as every defense of atrocity and bigotry that includes “he was a man of his time”—the same maneuver as arguing “don’t impose present day values on the past.” These are deliberate attempts to change the lines of engagement from the consequences of the behavior to the framework of the chronology. We can’t judge Jefferson for owning slaves, for example, “because he was a man of his time.” Is that to say that the right to freedom against oppression (and slavery) does not have deep roots in our Nation’s history and traditions?
Claiming human rights are revolutionary, that they have no deep history, that they are a novelty, is an attack on those rights. President Obama loved Martin Luther King Jr.’s succinct paraphrase of nineteenth-century abolitionist preacher Theodore Parker’s thoughts: “the arc of the moral universe is long, but it bends toward justice.”[2] Yet reading Alito’s draft, we might be forgiven for disagreeing with the teleology—the draft explicitly puts other decisions into conversation, like Griswold, Skinner, Turner, and, what I immediately noticed, Loving v. Virginia—which guards the rights of those in interracial marriages.[3] This is not the first time this year that we’ve have to worry about it. Indiana Senator Mike Braun, in the midst of a series of questions about the Supreme Court overturning precedents like Roe, suggested Loving should go back to the Supreme Court in March, and his attempted damage control afterwards was deeply unpersuasive.[4] If it feels like the teleology of progress has collapsed, maybe it is because we kept convincing ourselves that it was, in fact, inevitable—that, much as in Francis Fukuyama’s “The End of History,” progress was constant.
But it is not. It is long, it is hard fought, it is always two steps forward and at least one step back. The Age of Revolutions is filled with seed of so much change that had to be fought for long after it ended—change that is never really complete, that we must fight to keep and improve and push further generation after generation.
Americans are taught Patrick Henry’s words, “Give me liberty, or give me death!” as children, from the accounts of his speech at the Second Virginia Convention that met at St John’s Church in Richmond on March 20, 1775. According to William Wirt, Henry said, “The question before the House is one of awful moment to this country. For my own part, I consider it as nothing less than a question of freedom or slavery; and in proportion to the magnitude of the subject ought to be the freedom of the debate.”[5] Strong words in a strong context, and like his fellow signatory, Thomas Jefferson, whose lofty rhetoric we remember while fighting over his embrace of slavery, Patrick Henry was also deeply flawed—fighting for liberty, using the rhetoric of freedom versus slavery, while also maintaining the institution for himself. Two years earlier, in a letter exchange with Robert Pleasants, a Virginia plantation owner and Quaker abolitionist, Henry acknowledged the correctness of the arguments against slavery, but wrote:
Would any one believe that I am Master of Slaves of my own purchase! I am drawn along by [the] general inconvenience of living without them, I will not, I cannot justify it. However culpable my Conduct, I will so far pay my devoir to Virtue, as to own the excellence & rectitude of her Precepts, & to lament my want of conforming to them.– I believe a time will come when an oppo. will be offered to abolish this lamentable Evil.–Every thing we can do is to improve it, if it happens in our day, if not, let us transmit to our descendants together with our Slaves, a pity for their unhappy Lot, & an abhorrence for Slavery. If we cannot reduce this wished for Reformation to practice, let us treat the unhappy victims with lenity, it is [the] furthest advance we can make toward Justice [We owe to the] purity of our Religion to shew that it is at variance with that Law which warrants Slavery.[6]
This is in 1773. And whatever rhetoric ends up in the Declaration of Independence, whatever protests Patrick Henry made, it was not until 1780 that one of the colonies passed a real law taking steps in this direction. On March 1, 1780, the Pennsylvania General Assembly passed the Gradual Abolition Act of 1780, a halfway point—by far the most conservative of the emancipation laws passed in northern states between 1780 and 1804, but the first genuinely enforced, as Rhode Island’s 1652 law was not.[7] Unlike the Declaration, where Jefferson’s rhetoric was never met by the universality it promised, Pennsylvania’s law said:
Impressed with these Ideas we conceive that it is our duty, and we rejoice that it is in our Power, to extend a Portion of that freedom to others, which hath been extended to us; and a Release from that State of Thraldom, to which we ourselves were tyrannically doomed, and from which we have now every Prospect of being delivered. It is not for us to enquire, why, in the Creation of Mankind, the Inhabitants of the several parts of the Earth, were distinguished by a difference in Feature or Complexion. It is sufficient to know that all are the Work of an Almighty Hand, We find in the distribution of the human Species, that the most fertile, as well as the most barren parts of the Earth are inhabited by Men of Complexions different from ours and from each other, from whence we may reasonably as well as religiously infer, that he, who placed them in their various Situations, hath extended equally his Care and Protection to all, and that it becometh not us to counteract his Mercies.[8]
The law is flawed, and limited—but more states followed in the north, setting foundations for change, and, of course, for violent conflict later.[9]
This conflict, between rhetoric and reality, of taking small steps forward, was not limited just to the United States. On February 4, 1794, the National Convention passed the “décret du 16 pluviôse an II,” abolishing slavery for the first time, building on the promise of the universality of the Droits de l’homme 5 years earlier.[10] And while the law was passed, and even somewhat enforced, it was at best imperfect, and short lived; the law of May 20, 1802, i.e. the “Law for Re-establishing Slavery in the French Colonies,” explicitly ended the law and reinstated the slave trade.[11] France would not “re-abolish” slavery until 1848.[12]
This is the nature of progress. It is slow, it is always in flux, it is always fought, tooth and nail, and occupied in the streets by the minority groups who refuse to give up their right to oppress. And in America, we know, that fight continued, and continues, from the Declaration of Independence to the Civil War to the Civil Rights Act to now. Theodore Parker, the Massachusetts transcendentalist, preacher, abolitionist, knew this. In 1848 he wrote and published his “To a Southern Slaveholder,” an anti-slavery essay.[13] In 1850, after the passage of the Fugitive Slave Act of 1850, he spoke to the Boston Vigilance Committee at Faneuil Hall alongside Frederick Douglass and others to reorganize the organization and provide aid to escapees. And in 1852 he gave the sermon “Of Justice and the Conscience,” which Martin Luther King Jr. paraphrased, Obama loved, and we have accepted in its misapplication. What Parker said, though, was much more robust:
Look at the facts of the world. You see a continual and progressive triumph of the right. I do not pretend to understand the moral universe, the arc is a long one, my eye reaches but little ways. I cannot calculate the curve and complete the figure by the experience of sight; I can divine it by conscience. But from what I see I am sure it bends towards justice. Things refuse to be mismanaged long. Jefferson trembled when he thought of slavery and remembered that God is just. Ere long all America will tremble.[14]
He cannot calculate the curve—things refuse to be mismanaged long. Theodore Parker did not simply wait, and hope, and resign himself to inevitability. While violating unjust laws, in the name of freedom, he preached against the injustice of the world and called for that arc. An arc that is not just left alone, but one that must be bent. And Parker would bend it—he was one of the so-called “Secret Six” who funded John Brown’s raid on Harper’s Ferry, and in the aftermath defended it, writing “John Brown’s Expedition: a Letter,” after his execution.[15] And in it he unequivocally wrote, “we must give up democracy if we keep slavery, or give up slavery if we keep democracy,” before defending Brown’s raid.[16]
That process was not finished five years later, after Parker’s death, when the American Civil War ended. There were two separate Klans yet to come, the era of Jim Crow, the wave of terrorist violence unleashed against Black communities across the south. It was not over a hundred and four years later, when the Civil Rights Act of 1964 was ratified. It was not over one hundred and forty-nine years later, when Obama was inaugurated as our nation’s first Black president. It is not over today. It is not over for the poisonous legacy of slavery in this country. It is not over for a woman’s right to choose. It is not over for equality of marriage. It is not over for any of the ideals we may cherish, the promise of progress, the idea that all people are created equal and deserve to be treated as such. The moral arc of the universe is long, and must be bent to justice, generation after generation. And so we shall bend it again. One wonders how future historians devoted to enshrining the rights of individuals will explain the Supreme Court and Alito’s majority opinion. Likely, they won’t explain him as a “man of his own time,” but rather place him in this long dialectic of justice and injustice, freedom and oppression.
Thomas Lecaque is an Associate Professor of History at Grand View University in Des Moines, Iowa, located on Baxoje, Meskwaki and Sauk lands. His primary research area is on the crusades and apocalypticism in the High Middle Ages, but he teaches broadly in medieval world, vast early America, and video games and history courses. He can also be found @tlecaque.
Title image: Photo of Supreme Court.
Further readings:
Blake, Aaron. “The Supreme Court’s draft opinion on overturning Roe v. Wade, annotated.” The Washington Post. May 3, 2022. Accessed May 4, 2022. https://www.washingtonpost.com/politics/interactive/2022/dobbs-alito-draft-annotated/?itid=hp_most-read_1
Briggs, Laura. “Originalists are misreading the Constitution’s silence on abortion.” The Washington Post. Made by History. May 3, 2022. Accessed May 4, 2022. https://www.washingtonpost.com/outlook/2022/05/03/originalists-misreading-constitution-silence-abortion/
Dayton, Cornelia Hughes. “Taking the Trade: Abortion and Gender Relations in an Eighteenth-Century New England Village.” William and Mary Quarterly, 3rd series, 48 (1991): 19-49.
Hannah-Jones, Nikole. The 1619 Project: A New Origin Story. London: Oneworld, 2021.
Parker, Theodore. Ten Sermons of Religion. 2nd edition. Boston: Little, Brown and Company, 1855. Online: https://books.google.com/books/about/Ten_Sermons_of_Religion.html?id=C3orAAAAYAAJ
Endnotes:
[1] Samuel Alito, “Thomas E. Dobbs, State Health Officer of the Mississippi Department of Health, et al., Petitioners v. Jackson Women’s Health Organization, et al.,” February 10, 2022, in Josh Gerstein and Alexander Ward, “Supreme Court has voted to overturn abortion rights, draft opinion shows,” Politico, May 2, 2022, https://www.politico.com/news/2022/05/02/supreme-court-abortion-draft-opinion-00029473.
[2] Mychal Denzel Smith, “The Truth About ‘The Arc of the Moral Universe’,” HuffPost, January 18, 2018, https://www.huffpost.com/entry/opinion-smith-obama-king_n_5a5903e0e4b04f3c55a252a4.
[3] Alito, 31.
[4] Jamelle Bouie, “How Are We Still Debating Interracial Marriage in 2022?” The New York Times, March 25, 2022, https://www.nytimes.com/2022/03/25/opinion/mike-braun-loving-virginia.html.
[5] William Wirt, Sketches of the Life and Character of Patrick Henry: Electronic Edition (University Library, University of North Carolina at Chapel Hill, 1999), https://docsouth.unc.edu/southlit/wirt/wirt.html, 120; 123.
[6] Patrick Henry. “Letter to Robert Pleasants”. Letter, January 18, 1773. From Teaching American History. https://teachingamericanhistory.org/document/patrick-henry-to-robert-pleasants/ (accessed May 3, 2022).
[7] “Law limiting terms of servitude, 1652,” Rhode Island State Archives Excerpt, https://www.sos.ri.gov/assets/downloads/documents/1652-Slavery.pdf; Olivia B. Waxman, “America’s First AntiSlavery Statute Was Passed in 1652. Here’s Why It Was Ignored,” Time, May 18, 2017, https://time.com/4782885/rhode-island-antislavery/.
[8] “An Act for the Gradual Abolition of Slavery—March 1, 1780,” Pennsylvania Historical & Museum Commission, http://www.phmc.state.pa.us/portal/communities/documents/1776-1865/abolition-slavery.html.
[9] See Alexandria Cannon, “Gradual Abolition Act of 1780,” George Washington’s Mount Vernon, https://www.mountvernon.org/library/digitalhistory/digital-encyclopedia/article/gradual-abolition-act-of-1780/.
[10] Jean-Daniel Piquet, “Robespierre et la liberté des noirs en l’an II d’après les archives des comités et les papiers de la commission Courtois,” Annales historiques de la Révolution française [En ligne], 323 (janvier-mars 2001), consulté le 03 mai 2022, http://journals.openedition.org/ahrf/1822; Luce-Marie ALBIGÈS, “La première abolition de l’esclavage en 1794,” Histoire par l’image [en ligne], consulté le 03 mai 2022, http://histoire-image.org/fr/etudes/premiere-abolition-esclavage-1794.
[11] Jean-Baptiste Duvergier, Collection complete des lois, décrets, ordonnances, réglements, avis du Conseil-d’État, t. XIII (Paris: A. Guyot et Scribe, 1826), 446.
[12] “Décret du 27 avril 1848,” Le Moniteur Universel, Journal officiel de la République française, mardi 2 mai 1848., https://www2.assemblee-nationale.fr/14/evenements/2016/abolition-de-l-esclavage-1794-et-1848/1848-l-abolition-definitive#node_32613.
[13] https://en.wikisource.org/wiki/To_a_Southern_Slaveholder
[14] Theodore Parker, “Of Justice and the Conscience,” 1852, http://www.fusw.org/uploads/1/3/0/4/13041662/of-justice-and-the-conscience.pdf , 6.
[15] Theodore Parker, John Brown’s Expedition, A Letter from Rev. Theodore Parker at Rome, to Francis Jackson, Boston (Boston: The Fraternity, 1860).
[16] Parker, 4.
Age of Revolutions 