Filibuster Now! Alito Is Un-American

How un-American does a U.S. Supreme Court nominee have to be before the Senate Democrats will filibuster the appointment? Is it enough to say that only white men who own property should be allowed to vote? That women have no status in society because they are covered up by their husbands? That African-Americans count for only a fraction of white people?

You may not have heard it, but Samuel A. Alito Jr. said all those things – and others equally disturbing – during his confirmation hearings before the U.S. Senate. You did not hear it because it was well-camouflaged under conservative rhetoric intended to sound patriotic and grounded in American values. Alito’s meaning, however, is anything but American. It is the polar opposite.

Alito violated the tenets of Americanism when he said, “In interpreting the Constitution, I think we should look to the text of the Constitution, and we should look to the meaning that someone would have taken from the text of the Constitution at the time of its adoption.”

For all but the wealthiest, whitest, and male among us, those are frightening words. They are fraught with the potential to un-do many of the aspects of American society we take for granted. A full understanding of the words, however, relies on a historical context missing in the debate over Alito.

The meaning of the Constitution has been constantly changing since its adoption, expanding from a document that originally applied only to white males to one that now covers women as well as men, and peoples of all races and religions. American history can be read as a gradual extension of the meaning of “American” to cover people regardless of race, religion, or gender as interpretations of the Constitution shifted to match contemporary standards of fairness and decency. Originalists like Alito reject the Constitution as a living, breathing document that permitted this expansion. They prefer to allow the dead hand of the 18th century to keep a strangle-hold on the meaning of the Constitution.

The suggestion that “we should look to the meaning that someone would have taken from the text of the Constitution at the time of its adoption” is deceptively simple. It implies universal agreement on what the Constitution meant when it was drafted in 1787 and ratified in 1788. It limits the “someone” who can interpret the Constitution to a privileged minority of Americans. It implies that “the time of its adoption” should have precedence over all succeeding generations.

Alito’s statement offends common sense by suggesting that it is even possible to discern the intent of people acting more than 200 years ago. No verbatim transcript of the proceedings exist, nor any C-Span recordings. Deliberations were secret, so there are not even any arms-length press accounts (to the extent a press as we know it existed then). Other sources abound, of course, including accounts by participants and the Federalist Papers written afterwards to promote its ratification, but slaveholders in the South had far different intentions in adopting the Constitution than did Boston artisans. In the event that their writings disagree on the meaning of “cruel and unusual punishment,” for example, which “someone” will the originalist Alito rely on for his favored interpretation – the slaveholder who did not think it was cruel to steal children from their families in Africa and sell them into slavery among strangers half a world away?

At the time of its adoption, the only “someone” who counted in politics was a white male. And not just any white male – specifically, those men who owned property. Under republican political theories of the day, only men who owned property were deemed “independent” enough to cast a vote or serve in office without being unduly influenced by others and to place the common good above their own individual interests.

While property ownership was more widespread in the colonies than it had been in Great Britain, it was far from universal. Many of the leaders of the revolution, for example, were artisans like Paul Revere rather than land owners. In the early days of the Republic, artisans and wage-earners fought political battles to win the right to vote. Interpreting the meaning of the Constitution based on 1787 would exclude non-property owning white men from its coverage. If soldiers who fought in the American Revolution and owned no property could be excluded from the voting rolls in 1787, how would the originalist Alito justify the right to vote for a 20-year-old soldier fighting in Iraq who lived with his parents before enlisting?

Women would be in even worse shape in a world governed by originalists like Alito. At the time of the Constitution’s adoption, women had no legal standing. Their legal status was said to be “covered” by that of their husbands. Married women could not own property in their own names. They did not have a right to their earnings, and, in the rare event of a divorce, they did not have a right to the children to whom they had given birth. They left a marriage with the clothes on their backs.

When Abigail Adams asked her husband, John, to “remember the ladies” in writing the Constitution, he mocked her by saying men would not submit to the “despotism of the petticoat.” Does returning to the meaning of the Constitution at the time of its adoption mean treating women’s rights as a joke? The right to vote is protected by the 19th amendment, but other rights that women taken for granted exist in law only. In the absence of an equal rights amendment, those laws might easily be deemed unconstitutional by originalist Alito because they are not within the meaning of the Constitution held by “someone” at the time of its adoption. Would the originalist Alito look to an interpretation of the Constitution held by Abigail Adams, or would he mock the idea as did John Adams?

For people of color, the meaning of the Constitution at the time of its adoption is most threatening. African Americans who were not slaves rarely could vote even in the North, where slavery was less widespread than in the South. The 13th, 14th, and 15th Amendments ended slavery, made African Americans citizens entitled to due process of law, and granted African American men the right to vote. But in interpreting those amendments, would Alito revert to the meaning of the framers of the Constitution – say to Thomas Jefferson, who believed that African Americans could mate with orangutans?

And what of Native Americans? At the time of the Constitution’s adoption, Native Americans could not own land, could not sue or testify in court, and could not vote. Their right to vote rests on a statute adopted by Congress in 1924. Can that right be challenged on the grounds that the framers of the 15th amendment were thinking only of former slaves and not Indians when they wrote that provision? And what of the rights of Chinese, Japanese, and Latino Americans? Did framers of the 14th and 15th amendments intend to cover them or were they thinking only of African Americans? Those amendments did little to protect Chinese immigrants until 1898, when the U.S. Supreme Court relied on the “plain meaning” of the amendments to strike down many provisions of an 1882 law banning most Chinese immigration. Would Alito the originalist agree with the “plain meaning” of the amendments or insist on basing the interpretation of the amendments on what their anti-slavery framers were thinking in the wake of the Civil War? The rights of women and minorities are far from the only aspects of modern society jeopardized by relying on an 18th century understanding of the world. Paper money, a minimum wage, social security – what would Jefferson do about them?

Originalists like Alito see no problem with striking down anything that the founders did not intend. Their answer is that the Constitution can always be amended to suit the times. Women who are still waiting for ratification of the equal rights amendment know what a false promise that can be. Alito may not be personally anxious to see the rights of women and minorities rolled back more than 200 years, but by adopting the stance of an originalist, Alito is saying that fidelity to the standards of the 18th century is more important than anything else.

That is a world in which few 21st century Americans would be comfortable. Senate Democrats must do everything in their power to rescue us from this anachronistic Supreme Court nominee.