The most asinine area of debate over U.S. law is “what the Founding Fathers would have wanted.” Fuck those guys. They never even used a flush toilet or turned on an electric light. They don’t have to live in these times; we do. And whatever crumb of fealty we owe to their vision for the country is still more than should be paid to the judges of the empire they rebelled against. Yet that’s who Justice Samuel Alito cited in a leaked draft opinion that indicates the Supreme Court will strike down Roe v. Wade and federal protections for abortion.
To say the appearance of this historical precedent is infuriating would be an understatement. Sir Matthew Hale, while a respected legal thinker in his day, died in 1676. English doctors of this era didn’t believe in germ theory, and still subscribed to the Greek physician Galen’s idea that the body was ruled by four fluids, or “humors” — black bile, yellow bile, phlegm and blood. Charles II, the monarch who reigned from 1660 to 1685, granted thousands of his subjects the so-called “royal touch” in a superstitious ritual thought to cure a common disease afflicting the lymph nodes. Abortion, to state what cannot be repeated enough, is health care, and we’re supposed to outlaw it because Hale and his contemporaries, whose understanding of medicine was essentially medieval, ruled it a crime? Let’s bring back the bubonic plague while we’re at it!
We might also, as many have pointed out, want to avoid the guidance of a guy who not only sentenced women to death for witchcraft but allowed their accusers to enter god damn dreams as evidence at trial — a ruling that laid the groundwork for the Salem witch trials in Massachusetts 30 years later. Even back then, many people didn’t lend credence to the idea of witchcraft, though Hale noted that the reality of black magic was not up for dispute, since it was acknowledged in both the Bible and Parliamentary statues. Flawless reasoning there, buddy. I sure am glad we have your example to look up to when stripping away human rights.
There’s no shortage of Hale opinions that, while sounding barbaric by our standards, nonetheless infected our jurisprudence for generations after his own family line died out. In some ways, however, these are beside the point — for the notion that we in the United States must establish some continuity of law with a 17th-century jurist from another country is debasing no matter what he said or wrote.
Let this dead bitch rot in the grave, and his hold on us expire.