Samuel Alito vs. James Madison
Justice Samuel Alito’s forthcoming majority opinion overturning Roe v. Wade purports to unmask the unwritten intent of the U.S. Constitution, yet skips the Federalist Papers, the most comprehensive record of the original founders’ intentions and arguably the most brilliant discourse in our nation’s history.
By expanding government power to allow state control of personal health decisions, Alito works an affront to the 9th Amendment, through which James Madison saved the Bill of Rights by anticipating and protecting personal rights not yet defined at the time of drafting. Alito’s draft opinion is unmoored from constitutional history, presenting a results-driven display of judicial overreach endorsed by conservative jurists — textualists who otherwise claim to reject judicial overreach.
Legal analysts have long noted the conservative trajectory of members of the high court, most of whom were appointed by a president who lost the popular vote. Justices Alito, Coney Barrett, Gorsuch, Kavanaugh, Roberts and Thomas all have personal and professional ties to the Federalist Society, a not-for-profit organization of conservative lawyers who advocate for textualist and originalist interpretations of the United States Constitution. Originalists believe the Constitution was intended as a static document, resistant to interpretations that reflect the mores of a fluid and changing society. Expanding rights and responsibilities not spelled out by the drafters, they believe, is an exercise in judicial overreach, an act that violates separation of powers by intruding into the legislative domain.
Rather than analyze the case before the Court through the lens of 1790s textualism, like conservative jurists may do, Alito drives his analysis through the 14th Amendment, passed nearly 100 years after ratification, to argue that abortion is “unmoored” from the constitutional text and is not deeply rooted in United States history. He nearly spits at the argument that Equal Protection — not privacy — protects women’s health, and completely disregards the foundational underpinning of the original Roe decision: the 9th Amendment.
The crux of Alito’s analysis is that the Constitution does not mention privacy or abortion, therefore it does not protect those liberties. (The Constitution does not mention judicial review either, but Marbury vs. Madison settled that issue.) Alito’s opinion allows that even the 14th Amendment was intended to protect some liberties not specifically spelled out, with his caveat that “(t)he due process clause of the 14th Amendment has been held to guarantee some rights that are not mentioned in the Constitution…’ ”
To resolve the question of which undefined liberties are protected, Alito presents undisputed evidence that at the time the Constitution was ratified, abortions were accepted and performed under common law up to the point of “quickening,” or movement in the womb. However, instead of examining the drafters’ intent during the 18th century, Alito revives a 13th century treatise on English law and custom, which was written when women were chattel and nonconformists were burned alive.
Strongly personally opposed to abortion, Alito first presents, then massages, evidence that abortions were legal through common law. He notes, “abortion was a crime at least after ‘quickening” throughout common law. Any plain reading of
‘after quickening’ means it was legal before quickening, throughout centuries of common law. The men who drafted the U.S. Constitution were products of common law, and lived under common law, so it is fair to assume that if they wanted to address abortion while they were writing the new law manifesto, they would have.
The inconvenient takeaway from Alito’s own authority is that even when women were owned by their husbands, abortions to the point of ‘quickening’ were legal — not illegal. A true originalist of Federalist Society ilk would defer to this history of common law and practice, predating the Constitution by at least five centuries, and conclude that the drafters did not address the practice of abortion because they intended to leave it alone.
Had Alito applied true originalist review, his outcome would have veered dramatically, because the drafters intended to limit government power, not individual freedoms. Any devotee of limited government would turn to the holy grail of strict constructionists, the Federalist Papers, written and disseminated by the drafters at the time they were arguing about and drafting the US Constitution. There they would find James Madison’s brilliant discourse on individual liberties- and an prescient acknowledgment of changes to come.
James Madison shaped the ratification of the Constitution by writing, with Alexander Hamilton and John Jay, the Federalist essays, which remain essential today in discerning the intentions of the drafters. During the Constitutional Convention, the most heavily debated question of the times concerned whether to articulate a bill of personal rights on which the government could never intrude. Alexander Hamilton was the chief opponent to the Bill of Rights, opposing it out of fear that identifying such rights would have the unintended effect of excluding rights that were not so listed. He argued that since the Constitution was an instrument designed, drafted, and intended to control and limit the government, the government had no powers whatsoever beyond those listed in the Constitution. For example, he asked, why specify in the First Amendment that the government could not establish religion or limit the press, when there was no language in the Constitution that granted the government that affirmative power to begin with?
Against this forceful logic in opposition to the Bill of Rights, James Madison conceded the drafters’ inability to conceive of and list every possible liberty that should be protected against government intrusion, noting that “no language is so copious as to supply words and phrases for every complex idea.” Madison expressly acknowledged Hamilton’s concern that a list of rights might be used by a usurper to exclude rights not listed, as “one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system.”
Madison, regarded as the father of the U.S. Constitution, assuaged Hamilton’s well-founded fears by drafting and introducing the 9th Amendment to the Bill of Rights. The 9th Amendment, adopted largely as Madison drafted it in 1791, remains in full force and effect today, and states:
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
In other words, because liberty retained by the people was expansive while government was limited, if the Constitution does not expressly confer the right to infringe, the government has no such right. Madison’s 9th Amendment was adopted to manifestly counter the suggestion that an affirmative list of personal liberties implied a negation of all others. In modern legal parlance, the 9th Amendment was the drafting equivalent of the phrase, “including, but not limited to….,” a clause found today in nearly every contract, release, and legal instrument governing relations between two or more parties. It was an admission that the drafters could not foresee every contingency that would arise, and that they intended certain personal liberties- defined and undefined in the
Bill of Rights — to be untouchable by the government, forever personal, forever sacrosanct.
The 9th Amendment may receive less attention than the 14th Amendment, and yet, the Supreme Court held that the 9th Amendment (applied to the states through the 14th Amendment) supports the privacy right to use contraceptives in Griswold v Connecticut. ”The Ninth Amendment simply shows the intent of the Constitution’s authors that other fundamental
personal rights should not be denied such protection or disparaged in any other way simply because they are not specifically listed in the first eight constitutional amendments.”
Of equal importance, it was the 9th Amendment — not the 14th — that informed the district court’s decision in the original consolidated cases of Roe v. Wade . Given that the 9th Amendment formed the very foundation of the original opinion in Roe, Alito’s failure to discuss the 9th amendment in overturning Roe is bizarre, and could lead to bizarre outcomes. As written, pretending the 9th Amendment doesn’t exist, if states can outlaw abortions, they can also require abortions, and they can outlaw contraceptives, miscegenation, and same-sex relations under the same analysis.
Federalist debates make clear that the 9th Amendment anchored the Bill of Rights, by providing a clear textual admonition not to restrict personal liberties that are not spelled out. The brilliance of the U.S. Constitution is that it was written as an express limitation of government powers, not individual freedoms. It was drafted by men who suffered under the yoke of an abusive government with nearly unfettered powers, who then forged a document meant to constrain those powers by protecting the freedom of the individual.
No court — not even a Supreme Court anxious to overturn a law with which its members personally disagree — is allowed to “presume that any clause in the constitution is intended to be without effect.” Marbury v. Madison.
In expanding the government’s power to control the bodies and intimate lives of women, Alito’s draft opinion injures the
9th Amendment, without which we would not have the Bill of Rights. Alito’s judicial overreach does not just shame precedent, or women, or the Court. It shames the original federalist, James Madison.