Draft Overturning Roe Quotes Infamous Witch Trial Judge With Long-Discredited Ideas On Rape

  

Category:  News & Politics

Via:  john-russell  •  2 weeks ago  •  80 comments

By:   Ken Armstrong (TPM)

Draft Overturning Roe Quotes Infamous Witch Trial Judge With Long-Discredited Ideas On Rape
The so-called marital rape exemption — the legal notion that a married woman cannot be raped by her husband — traces to Hale. So does a long-used instruction to jurors to be skeptical of reports of rape. So, in a way, do the infamous Salem witch trials, in which women (and some men) were hanged on or near Gallows Hill. Hale's influence in the United States has been on the wane since the 1970s, with one state after another abandoning his legal principles on rape. But Alito's opinion...

S E E D E D   C O N T E N T



Justice Alito's leaked opinion cites Sir Matthew Hale, a 17th-century jurist who conceived the notion that husbands can't be prosecuted for raping their wives, who sentenced women to death as "witches," and whose misogyny stood out even in his time. TPM illustration/ Getty Images. By Ken Armstrong | May 6, 2022 3:35 p.m.

This article first appeared at ProPublica, a Pulitzer Prize-winning investigative newsroom.

When U.S. Supreme Court Justice Samuel Alito, in a draft opinion obtained and published this week by Politico, detailed his justifications for overturning Roe v. Wade, he invoked a surprising name given the case's subject. In writing about abortion, a matter inextricably tied to a woman's control over her body, Alito chose to quote from Sir Matthew Hale, a 17th-century English jurist whose writings and reasonings have caused enduring damage to women for hundreds of years.

The so-called marital rape exemption — the legal notion that a married woman cannot be raped by her husband — traces to Hale. So does a long-used instruction to jurors to be skeptical of reports of rape. So, in a way, do the infamous Salem witch trials, in which women (and some men) were hanged on or near Gallows Hill.

Hale's influence in the United States has been on the wane since the 1970s, with one state after another abandoning his legal principles on rape. But Alito's opinion resurrects Hale, a judge who was considered misogynistic even by his era's notably low standards. Hale once wrote a long letter to his grandchildren, dispensing life advice, in which he veered into a screed against women, describing them as "chargeable unprofitable people" who "know the ready way to consume an estate, and to ruin a family quickly." Hale particularly despaired of the changes he saw in young women, writing, "And now the world is altered: young gentlewomen learn to be bold" and "talk loud."

An excerpt from Hale's "Letter of Advice." Credit: Via Google Books

Hale became Lord Chief Justice of England in 1671. In his time (Hale's contemporaries included Oliver Cromwell and Charles II), Hale was a respected, perhaps even venerated, jurist known for piety and sober judgment. He wrote a two-volume legal treatise, "The History of the Pleas of the Crown," that has proved influential ever since.

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Alito, in his draft opinion, invokes "eminent common-law authorities," including Hale, to show how abortion was viewed historically not as a right, but as a criminal act. "Two treatises by Sir Matthew Hale likewise described abortion of a quick child who died in the womb as a 'great crime' and a 'great misprision,'" Alito wrote.

Even before "quickening" — defined by Alito as "the first felt movement of the fetus in the womb, which usually occurs between the 16th and 18th week of pregnancy" — Hale believed an abortion could qualify as homicide. "Hale wrote that if a physician gave a woman 'with child' a 'potion' to cause an abortion, and the woman died, it was 'murder' because the potion was given 'unlawfully to destroy her child within her,'" Alito wrote.

Courts have long leaned on precedents established by old cases and the scholarship of legal authorities from centuries gone by. But what happens when you trace citations back to their ancient source? In Hale's case, you sometimes find a man conceiving precepts out of thin air. Other times it was the opposite, as he clung to notions that were already becoming anachronistic in the last half of the 17th century.

Consider the marital rape exemption. In "Pleas of the Crown," Hale wrote, "The husband cannot be guilty of a rape committed by himself upon his lawful wife for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband which she cannot retract." So, according to Hale, marriage, for a woman, amounts to contractual forfeit, in which she loses legal protection or recourse should her husband sexually assault her.

Hale's pronouncement became the accepted common law and served as foundation in the United States for immunizing a husband accused of raping his wife. And where did Hale's pronouncement come from? What did he base it upon? Who knows? "Hale appears to have been the first to articulate what later would become an accepted legal principle, that a husband cannot be charged with raping his wife," according to a footnote in one law review article. Another law review article, titled "The Marital Rape Exemption: Evolution to Extinction," called Hale's pronouncement "an unsupported, extrajudicial statement" lacking in authority.

Starting in the 1970s, states began to abandon the marital rape exemption, in whole or in part. In 1981, the Supreme Court of New Jersey wrote that it could find no support for Hale's proposition among earlier writers. Hale's declaration, the court found, "cannot itself be considered a definitive and binding statement of the common law, although legal commentators have often restated the rule since the time of Hale without evaluating its merits." In 1984, the Supreme Court of Virginia wrote: "Hale's statement was not law, common or otherwise. At best it was Hale's pronouncement of what he observed to be a custom in 17th century England." The Virginia court went on to note, "Moreover, Hale cites no authority for his view nor was it subsequently adopted, in its entirety, by the English courts."

Like the marital rape exemption, the so-called Hale Warning to jurors caused centuries of misfortune in the American courts.

In "Pleas of the Crown," Hale called rape a "most detestable crime." Then, in words quoted many times since, he wrote, "It must be remembered, that it is an accusation easy to be made and hard to be proved, and harder to be defended by the party accused, tho never so innocent."

Hale evoked the fear of the false accuser — and made for that fear a legal frame, which lasted for more than 300 years. In weighing the evidence in cases of alleged rape, jurors (all men, in Hale's time and for long after) needed to consider a series of factors, Hale wrote. Did the woman cry out? Did she try to flee? Was she of "good fame" or "evil fame"? Was she supported by others? Did she make immediate complaint afterward?

Hale's words and formulation became a standard feature of criminal trials in the United States, with jurors instructed by judges to be especially wary of allegations of rape. The effect was predictable: Charges of rape were frequently rejected. In the United States, one early example was chronicled by historian John Wood Sweet in his soon-to-be-published book, "The Sewing Girl's Tale." (I was allowed to read an advance copy.)

In 1793, in New York City, an aristocrat, Henry Bedlow, was accused of raping a 17-year-old seamstress, Lanah Sawyer. Bedlow hired six lawyers, including a future U.S. Supreme Court justice, who used Hale's framework to destroy Sawyer. Sawyer said she screamed. But, one attorney asked the jury, did she also stamp her feet? Witnesses spoke of Sawyer's good fame, according to the trial record. But "she may have had the art to carry a fair outside, while all was foul within," the same attorney argued. "Ultimately, the defense team's dizzying effort to dispute and distort reality had been part of a relentless effort to transform a young woman who mattered into one who didn't," Sweet wrote. The jury took 15 minutes to acquit.

Starting in the 1970s and 1980s, courts in the United States began moving away from instructing juries with Hale's admonition to be particularly skeptical of rape claims. The repudiation of Hale became so complete that when a Maryland lawmaker, in 2007, invoked Hale's words in a state legislative hearing, it was met with "outrage," according to the Washington Post.

Despite those legal changes, the fear of the false rape accuser still persists in the justice system, at times leading to horrendous outcomes. I began researching Hale when writing, with T. Christian Miller, "An Unbelievable Story of Rape," published by ProPublica and the Marshall Project. The story reconstructs what happened when a young woman in Lynnwood, Washington, reported being raped. We later expanded the story into a book, "Unbelievable," in which we described Hale's influence in rape cases at greater length. (The story also became a Netflix series.)

Then there was Hale's role in what today is synonymous with the perversion of justice: witch trials.

In 1662, Hale presided at a jury trial in Bury St. Edmunds in which two women, Amy Denny and Rose Cullender, were accused of being witches. In a book on this case, "A Trial of Witches," authors Ivan Bunn and Ivan Bunn and Gilbert Geis wrote that by 1662, "belief in witches was in retreat in England." Hale, however, was not part of that retreat. He believed witches were real. "Hale represented not a mainstream position but rather one rapidly becoming anachronistic," Bunn and Geis wrote.

What's more, Hale instructed the jurors that witches were real. A written record of the trial recounts what Hale told them: "That there were such creatures as witches he made no doubt at all; for first, the scriptures had affirmed so much. Secondly, the wisdom of all nations had provided laws against such persons, which is an argument of their confidence of such a crime."

The jury convicted Denny and Cullender, after which Hale sentenced both women to hang. (Four years before, Hale had also sentenced to death another woman convicted of being a witch.)

Hale's influence, once again, extended beyond the immediate case and his time. Thirty years later, his handling of the trial in Bury St. Edmunds, preserved in written record, served as a model in Salem, Massachusetts, in the infamous witch trials in 1692. "Indeed, the Salem witch-hunts might not have taken place if there had not been a trial at Bury St. Edmunds: the events at Salem notoriously imitated those at Bury," Bunn and Geis wrote.

Hale is known mostly for his legal treatises. But his views toward women are perhaps best revealed in a letter he wrote to his grandchildren, titled "Letter of Advice." (In a twitter thread this week I said Hale's letter was 182 pages long. I may have understated it. I've since found a version online that goes on for 206 pages.)

The title page of Hale's letter. Credit: Via Google Books

In this letter, Hale prescribes individualized counsel for three granddaughters.

Mary, he wrote, possessed great wit and spirit, and "if she can temper the latter, will make an excellent woman, and a great housewife; but if she cannot govern the greatness of her spirit, it will make her proud, imperious, and revengeful."

Frances, he wrote, possessed great confidence: "If she be kept in some awe, especially in relation to lying and deceiving, she will make a good woman and a good housewife."

Ann, he wrote, possessed a "soft nature." "She must not see plays, read comedies, or love books or romances, nor hear nor learn ballads or idle songs, especially such as are wanton or concerning love-matters, for they will make too deep an impression upon her mind."

Hale complained in his letter that young women "make it their business to paint or patch their faces, to curl their locks, and to find out the newest and costliest fashions." And with that, he was just getting started. Hale followed with a 160-word sentence that is a marvel in its depth of disdain.

"If they rise in the morning before ten of the clock, the morning is spent between the comb, and the glass, and the box of patches; though they know not how to make provision for it themselves, they must have choice diet provided for them, and when they are ready, the next business is to come down, and sit in a rubbed parlour till dinner come in; and, after dinner, either to cards, or to the exchange, or to the play, or to Hyde Park, or to an impertinent visit; and after supper, either to a ball or to cards; and at this rate they spend their time, from one end of the year to the other; and at the same rate they spend their parent's or husband's money or estates in costly clothes, new fashions, chargeable entertainments: their home is their prison, and they are never at rest in it, unless they have gallants and splendid company to entertain."

Some observers have been taken aback that Alito referenced Hale. But not everyone was surprised. Eileen Hunt, a Notre Dame political science professor who has written extensively about Mary Wollstonecraft, author of the path-breaking 1792 treatise "A Vindication of the Rights of Woman," tweeted:

"It is a truth universally acknowledged that a conservative Supreme Court justice will cherry-pick an Enlightenment-era man as a timeless authority on reproductive rights but ignore #Wollstonecraft's pivotal philosophical views on women, mothering, and the sexual double standard."

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JohnRussell
Professor Principal
1  seeder  JohnRussell    2 weeks ago

The fact that Alito would use Matthew Hale's views as a justification for Alito's abortion opinion tells us a lot of what we need to know about Alito, and also the usefulness of only using hundreds of years old ideas as the basis for modern laws. 

 
 
 
Drinker of the Wry
Freshman Expert
1.1  Drinker of the Wry  replied to  JohnRussell @1    2 weeks ago
the usefulness of only using hundreds of years old ideas as the basis for modern laws. 

I saw Hale referenced in about 26 lines or less than a page of the 99 page draft.  Since abortion is specifically mentioned in the Constitution, he thought that abortion in English Common Law to be a some relevance.  If you read this draft, you might be surprised to see more discussion relative to the Constitution and US law as the basis for modern law.

 
 
 
JohnRussell
Professor Principal
1.1.1  seeder  JohnRussell  replied to  Drinker of the Wry @1.1    2 weeks ago

You are missing the point. The fact that Alito even chose to reference a jurist from 350 years ago with such controversial opinions should be disturbing to modern people.  Did Alito need Hale's name to prove his points, or did he choose to reference a 350 year old misogynist out of spite and meanness? 

Alito is close to being a fringe character and his views can be troubling. 

 
 
 
Nerm_L
PhD Principal
1.1.2  Nerm_L  replied to  Drinker of the Wry @1.1    2 weeks ago
I saw Hale referenced in about 26 lines or less than a page of the 99 page draft.  Since abortion is specifically mentioned in the Constitution, he thought that abortion in English Common Law to be a some relevance.  If you read this draft, you might be surprised to see more discussion relative to the Constitution and US law as the basis for modern law.

The Roe v. Wade decision relied upon British common law to define when life begins.  It seems Alito is referencing British common law that is contemporaneous with British common law cited in Roe v. Wade.  

For all I know, Roe v. Wade cited Hale, too.

 
 
 
Drinker of the Wry
Freshman Expert
1.1.3  Drinker of the Wry  replied to  JohnRussell @1.1.1    2 weeks ago
You are missing the point.

No, I understand your point, just don't find it particularly relevant.

Regardless of Hale's character defects, he was one of the greatest scholars on the history of English Common Law.  He was instrumental in the law-reform proposals of England's Convention Parliament.   

Hale has been quoted or referenced in previous court cases were English Common Law was felt relevant.

 
 
 
Ozzwald
Professor Quiet
1.1.4  Ozzwald  replied to  JohnRussell @1.1.1    2 weeks ago
You are missing the point.

No, he/they are avoiding the point.  Trying their best to spin around it without actually touching it.

 
 
 
JohnRussell
Professor Principal
1.1.5  seeder  JohnRussell  replied to  Drinker of the Wry @1.1.3    2 weeks ago
Regardless of Hale's character defects, he was one of the greatest scholars on the history of English Common Law.  He was instrumental in the law-reform proposals of England's Convention Parliament

So what? 

 
 
 
Sean Treacy
Professor Expert
1.1.6  Sean Treacy  replied to  Nerm_L @1.1.2    2 weeks ago

For all I know, Roe v. Wade cited Hale, too.

Lol.  Great point. And Justice  Blackmun sure enough did.

 
 
 
Drinker of the Wry
Freshman Expert
1.1.7  Drinker of the Wry  replied to  JohnRussell @1.1.5    2 weeks ago

It's only important if you think that understanding US Constitutional Law requires an understanding of the Magna Carta and English Law.

 
 
 
Ozzwald
Professor Quiet
1.1.8  Ozzwald  replied to  Nerm_L @1.1.2    2 weeks ago

For all I know, Roe v. Wade cited Hale, too.

If it had, I'm sure you would have specified that fact, since Roe v Wade is available for anyone to look up on the internet. 

Available to anyone not wanting to throw knowingly false information into the debate, that is.

 
 
 
Dulay
Professor Principal
1.1.9  Dulay  replied to  Drinker of the Wry @1.1.7    2 weeks ago

Alito doesn't cite Hale to further an understanding of US Constitutional law. Alito repeats ad nauseam Hale's writing stating that 'abortion was a crime after quickening'. 

 
 
 
Drinker of the Wry
Freshman Expert
1.1.10  Drinker of the Wry  replied to  Dulay @1.1.9    2 weeks ago

Could the point be that while the US Constitution doesn't enumerated the right to an abortion, English Common law and by extension Colonial law saw it as a crime?  And while the Due Process clause of the 14th Amendment does guarantee some unenumerated rights, it restricts those to rights deeply rooted in the Nation's history and tradition.

 
 
 
JohnRussell
Professor Principal
1.1.11  seeder  JohnRussell  replied to  Drinker of the Wry @1.1.10    2 weeks ago
it restricts those to rights deeply rooted in the Nation's history and tradition.

What nation? England? 

The idea that the only rights people should have are those based on British history from 400 years ago is absurd. 

Maybe Alito wants us to have a king and queen too. 

 
 
 
Dulay
Professor Principal
1.1.12  Dulay  replied to  Drinker of the Wry @1.1.3    2 weeks ago
No, I understand your point, just don't find it particularly relevant.

Why not? 

Regardless of Hale's character defects, he was  one of the greatest scholars on the history of English Common Law. 

This isn't about 'Hale's character defects, it's about his antiquated jurisprudence and Alito's reliance on it to justify his opinion. 

He was instrumental in the law-reform proposals of England's Convention Parliament.   

Laws being reformed long before the US Constitution. 

Hale has been quoted or referenced in previous court cases were English Common Law was felt relevant.

Yes yet Alito et al are desperate to ignore in what CONTEXT Hale was referenced. 

The very first case that Alito cites is Kahler v. Kansas which begins with this:

A challenge like Kahler’s must surmount a high bar. Under well-settled precedent, a state rule about criminal liability—laying out either the elements of or the defenses to a crime— violates due process only if it “offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental. Leland v. Oregon , 343 U.S. 790 , 798 (1952) (internal quotation marks omitted). Our primary guide in applying that standard is “historical practice.” Montana v. Egelhoff , 518 U.S. 37 , 43 (1996) (plurality opinion). And in assessing that practice, we look primarily to eminent common-law authorities (Blackstone, Coke, Hale, and the like), as well as to early English and American judicial decisions. See, e.g. , id. , at 44–45; Patterson v. New York , 432 U.S. 197 , 202 (1977). The question is whether a rule of criminal responsibility is so old and venerable—so entrenched in the central values of our legal system—as to prevent a State from ever choosing another. An affirmative answer, though not unheard of, is rare. See, e.g. , Clark , 548 U. S., at 752 (“[T]he conceptualization of criminal offenses” is mostly left to the States).

I find it pretty fucking ironic that Alito would cite that reference when it so clearly challenges his opinion.

Of course, Alito would have to recognize that women are people with fundamental rights. 

 
 
 
Dulay
Professor Principal
1.1.13  Dulay  replied to  Drinker of the Wry @1.1.10    2 weeks ago
Could the point be that while the US Constitution doesn't enumerated the right to an abortion, English Common law and by extension Colonial law saw it as a crime? 

You, along with Alito, seem desperate to avoid addressing the fact that Hale repeatedly cited the predicate that the abortion had to occur AFTER 'quickening' for it to be a crime. Perhaps you can explain why you chose to avoid that fact. I doubt Alito can. 

And while the Due Process clause of the 14th Amendment does guarantee some unenumerated rights,

Actually, that's the 9th Amendment. 

it restricts those to rights deeply rooted in the Nation's history and tradition.

Oh, please do cite those restrictions you allege exist in the 14th Amendment. 

THIS I gotta see...

 
 
 
Drinker of the Wry
Freshman Expert
1.1.14  Drinker of the Wry  replied to  Dulay @1.1.12    2 weeks ago
The very first case that Alito cites is Kahler v. Kansas which begins with this:

That not true, Kahler first appears on page 16.

 
 
 
Tessylo
Professor Principal
1.1.15  Tessylo  replied to  Dulay @1.1.13    2 weeks ago

All you'll get is deflection, continuously.  

 
 
 
Drinker of the Wry
Freshman Expert
1.1.16  Drinker of the Wry  replied to  Dulay @1.1.13    2 weeks ago
You, along with Alito, seem desperate to avoid addressing the fact that Hale repeatedly cited the predicate that the abortion had to occur AFTER 'quickening' for it to be a crime. Perhaps you can explain why you chose to avoid that fact. I doubt Alito can. 

Seem desperate?  I'm not desperate at all.  I don't agree with Alito's draft finding.  I was just trying to help those that haven't read it or are unable to follow a legal argument.  

Actually, that's the 9th Amendment.

Actually no:

The Due Process Clause of the Fourteenth Amendment is exactly like a similar provision in the Fifth Amendment, which only restricts the federal government. It states that no person shall be “deprived of life, liberty, or property without due process of law.” Usually, “due process” refers to fair procedures. However, the Supreme Court has also used this part of the Fourteenth Amendment to prohibit certain practices outright. For instance, the Court has ruled that the Due Process Clause protects rights that are not specifically listed in the Constitution, such as the right to privacy regarding sexual relations. In  Roe v. Wade  (1973), the Court ruled that this right to privacy included a woman's decision to have an abortion. In addition, the Court used the Due Process Clause to extend the Bill of Rights to the states over time through a practice known as “incorporation.”
 
 
 
Drinker of the Wry
Freshman Expert
1.1.17  Drinker of the Wry  replied to  Tessylo @1.1.15    2 weeks ago
All you'll get is deflection, continuously.

That's just your biases running away with you.

 
 
 
Dulay
Professor Principal
1.1.18  Dulay  replied to  Drinker of the Wry @1.1.14    2 weeks ago

Oh, allow me to clarify. The first case that Alito cites Hale, which is on pg. 16 as you stated. 

Better? 

Now that the deflection is address, would you like to address my point?

Oh, and can you answer my question about why you don't think that John's point is irrelevant? 

 
 
 
Tessylo
Professor Principal
1.1.19  Tessylo  replied to  Drinker of the Wry @1.1.17    2 weeks ago

Nope that's you.

 
 
 
Dulay
Professor Principal
1.1.20  Dulay  replied to  Drinker of the Wry @1.1.16    2 weeks ago
I was just trying to help those that haven't read it or are unable to follow a legal argument.  

You're failing. 

Mischaracterized Common law isn't helpful, nor does it enable others to 'follow a legal argument'. 

Actually no:

Your block quote fails to refute my statement. It also fails to support your claim that the 14th Amendment: 

restricts those to rights deeply rooted in the Nation's history and tradition.

Want to give it another shot? 

 
 
 
Drinker of the Wry
Freshman Expert
1.1.21  Drinker of the Wry  replied to  Dulay @1.1.18    2 weeks ago
Laws being reformed long before the US Constitution. 

Yes, the long arm of history links the Magna Carta, English law, Colonial Law, the US Constitution and State Law. 

Yes yet Alito et al are desperate to ignore in what CONTEXT Hale was referenced. 

I didn't read it as desperation.

The very first case that Alito cites is Kahler v. Kansas which begins with this:

In that case SCOTUS ruled that a state may abolish the insanity defense without violating the Eighth and Fourteenth Amendments?

I find it pretty fucking ironic that Alito would cite that reference when it so clearly challenges his opinion.

I didn't see it but maybe one or more of the dissenting arguments will highlight the irony that you found.

 
 
 
Dulay
Professor Principal
1.1.22  Dulay  replied to  JohnRussell @1.1.11    2 weeks ago

Well, if Alito wants to view this issue through the prism of Hale's jurisprudence, he could easily argue that coverture is Constitutional. Oh, and let's not forget that we'll need to start hanging witches again...

 
 
 
Drinker of the Wry
Freshman Expert
1.1.23  Drinker of the Wry  replied to  Dulay @1.1.20    2 weeks ago
You're failing. 

I'm sorry that you weren't helped.

Mischaracterized Common law isn't helpful,

What was mischaracterized?

It also fails to support your claim that the 14th Amendment: y

Read pages 5, 9, 10, 11, 14, et, of the Alito draft.

Want to give it another shot? 

I just did.

 
 
 
Drinker of the Wry
Freshman Expert
1.1.24  Drinker of the Wry  replied to  Tessylo @1.1.19    2 weeks ago

I'm running away with you?  Hardly.

 
 
 
Tessylo
Professor Principal
1.1.25  Tessylo  replied to  Drinker of the Wry @1.1.24    2 weeks ago

Your typical deflection

 
 
 
Tessylo
Professor Principal
1.1.26  Tessylo  replied to  Drinker of the Wry @1.1.23    2 weeks ago

Why do you pretend to act like you're helping when you're merely deflecting, continuously.

Has anyone sought your tutelage?

 
 
 
Drinker of the Wry
Freshman Expert
1.1.27  Drinker of the Wry  replied to  Tessylo @1.1.25    2 weeks ago
Your typical deflection

I've done nothing needing deflection.  

 
 
 
Drinker of the Wry
Freshman Expert
1.1.28  Drinker of the Wry  replied to  Tessylo @1.1.26    2 weeks ago
Why do you pretend to act like you're helping when you're merely deflecting, continuously.

I'm anxious to hear your legal analysis of Alito's argument.

 
 
 
Texan1211
Professor Principal
1.1.29  Texan1211  replied to  Tessylo @1.1.26    2 weeks ago

[deleted]

 
 
 
Dulay
Professor Principal
1.1.30  Dulay  replied to  Drinker of the Wry @1.1.21    2 weeks ago
Yes, the long arm of history links the Magna Carta, English law, Colonial Law, the US Constitution and State Law. 

Why start with the Magna Carta? Common law was in practice prior to it. 

I didn't read it as desperation.

What did you read it as? 

In that case SCOTUS ruled that a state may abolish the insanity defense without violating the Eighth and Fourteenth Amendments?

And? Why not address what I block quoted? 

I didn't see it but maybe one or more of the dissenting arguments will highlight the irony that you found.

I already did. 

 
 
 
Texan1211
Professor Principal
1.1.31  Texan1211  replied to  Drinker of the Wry @1.1.28    2 weeks ago

[deleted]

 
 
 
Drinker of the Wry
Freshman Expert
1.1.32  Drinker of the Wry  replied to  Dulay @1.1.30    2 weeks ago
Why start with the Magna Carta?

I didn't feel like doing a history of England reply.

What did you read it as?

A logical, coherent legal argument that I don't agree with.  

Why not address what I block quoted?

Alito already did.  The freedom to abort isn't rooted in US traditions and conscious of our people.

 
 
 
Dulay
Professor Principal
1.1.33  Dulay  replied to  Drinker of the Wry @1.1.23    2 weeks ago
I'm sorry that you weren't helped.

Mischaracterization of facts helps no one. 

What was mischaracterized?

For someone who pretends to be capable of following a legal argument, your questions are obtuse.  

You stated: 

English Common law and by extension Colonial law saw it as a crime

That is a mischaracterization because you continue to ignore Hale, Blackstone and Cook's PREDICATE. 

Again, that PREDICATE is 'quickening'. Oh, and since you seem to think it's relevant, Alito cites 'quick' 28 times over 19 pages and quickening 29 times over 13 pages. Yet Alito utterly ignores the fact that they PROVE that abortion has been historically and traditionally legal prior to the PREDICATE being met. 

Read pages 5, 9, 10, 11, 14, et, of the Alito draft.

Nope, your claimed that the 14th Amendment included those restrictions. Don't deflect, prove it. 

Oh and BTFW, NOWHERE in Alito's draft does he claim that the 14th Amendment restricts ANYTHING. 

I just did.

Strike two. 

 
 
 
Drinker of the Wry
Freshman Expert
1.1.34  Drinker of the Wry  replied to  Dulay @1.1.33    2 weeks ago
Again, that PREDICATE is 'quickening'.

Yes, if the gestational age was less than 14 weeks.  Are you an advocate for using English Common law in deciding this case? 

Reread pages 10 and 11.  My web version of the draft doesn't allow copy/paste and I'm not taking the time to transcribe for you.

 
 
 
Perrie Halpern R.A.
Professor Principal
1.1.35  Perrie Halpern R.A.  replied to  Drinker of the Wry @1.1.32    2 weeks ago
Alito already did.  The freedom to abort isn't rooted in US traditions and conscious of our people.

Oh please.... But I guess women not voting and slavery is, since that is in the Constitution, right? His commentary is absolutely ridiculous.

 
 
 
Tessylo
Professor Principal
1.1.36  Tessylo  replied to  Drinker of the Wry @1.1.34    2 weeks ago

[deleted]

 
 
 
Sean Treacy
Professor Expert
1.1.37  Sean Treacy  replied to  Perrie Halpern R.A. @1.1.35    2 weeks ago

t I guess women not voting and slavery is, since that is in the Constitution, right?

The Constitution was  amended on those points.  See the difference? 

 
 
 
Dulay
Professor Principal
1.1.38  Dulay  replied to  Drinker of the Wry @1.1.34    2 weeks ago
Yes, if the gestational age was less than 14 weeks. 

Where is that admission in Alito's draft? 

Are you an advocate for using English Common law in deciding this case? 

Again, NO. Why would I think that English Common law should supersede the Constitution? 

More importantly, why does Alito think it should? 

 
 
 
Nerm_L
PhD Principal
1.1.39  Nerm_L  replied to  Ozzwald @1.1.8    2 weeks ago
If it had, I'm sure you would have specified that fact, since Roe v Wade is available for anyone to look up on the internet.  Available to anyone not wanting to throw knowingly false information into the debate, that is.

Where can the draft opinions of justices involved in Roe v. Wade be found on the internet?  I'd really like to know.

 
 
 
Greg Jones
Professor Guide
1.2  Greg Jones  replied to  JohnRussell @1    2 weeks ago

Once again you're attempting to make a cherry picked connection that doesn't exist, and once again failing.

 
 
 
JohnRussell
Professor Principal
2  seeder  JohnRussell    2 weeks ago
"It is a truth universally acknowledged that a conservative Supreme Court justice will cherry-pick an Enlightenment-era man as a timeless authority on reproductive rights but ignore  #Wollstonecraft 's pivotal philosophical views on women, mothering, and the sexual double standard."
 
 
 
Sean Treacy
Professor Expert
3  Sean Treacy    2 weeks ago

It's funny to see the same astroturfed talking points appear in left wing outlets at the same time. It's almost like they are coordinated. 

But so what?   I guess since Alito's opinion can't be attacked on the basis of his legal reasoning,   the left falls back on ad hominem logical fallacies.

He's  not being cited as anything other than as a  complier of the common law from 400 years.   To quote this article "Hale was a respected, perhaps even venerated, jurist known for piety and sober judgment. He wrote a two-volume legal treatise, "The History of the Pleas of the Crown," that has proved influential ever since."

His opinions on witchcraft or aliens aren't relevant.  He simply recorded the state of the common law in 17th century England..  Since he's the expert on an issue before the Court, Alito referenced him. To ignore him would be malpractice.  Since the substance of Hale's report can't be attacked, the left resorts to attacking his opinion on extraneous issues.  No surprise. 

 
 
 
JohnRussell
Professor Principal
3.1  seeder  JohnRussell  replied to  Sean Treacy @3    2 weeks ago

Nice try but no cigar. 

 
 
 
Sean Treacy
Professor Expert
3.1.1  Sean Treacy  replied to  JohnRussell @3.1    2 weeks ago

Have you looked into the background of the common law authorities the dissents  will cite?   What were their positions on marital rape? How racially enlightened were they? 

Somehow I don't think you'll keep up this line of attack very long. 

 
 
 
JohnRussell
Professor Principal
5  seeder  JohnRussell    2 weeks ago

John Oliver fillets the 'horror show' opinion striking down Roe v. Wade , explains abortion rights

byPeter Weber3:46 AM

The first story on Sunday's Last Week Tonight was, atypically, about last week's biggest U.S. news story — Justice Samuel Alito's leaked majority opinion striking down Roe v. Wade and the constitutional right to obtain an abortion. "And while the fate of Roe may not have been a surprise, the draft itself was still a horror show," John Oliver said, offering one plausible explanation for why the Constitution's framers "left off the specific right to abortion."

But "Alito wasn't just deferring to the Constitution, he repeatedly cited some other notable sources, too, like 17th century jurist Sir Matthew Hale, who once described abortion as a 'great crime,'" Oliver said. "He also argued that a husband cannot be guilty of a rape committed upon his wife, sentenced two women to death for witchcraft, and argued young women were 'the ruin of families' because they 'learn to be bold' and 'talk loud.' And while those beliefs might earn you a Netflix comedy special called Trigger This , they should absolutely disqualify you as a scholarly reference on the matter of reproductive rights."

"We need to be able to talk about abortion like adults, because when, as now seems inevitable, this ruling becomes official, there will be immediate and devastating consequences," Oliver argued. "And it is worth taking some time tonight to talk about a few things: What this ruling means, how we got to this point, and where we go now. And when it comes to what this means, it's catastrophic."

Polls consistently show that "the majority of Americans don't want to overturn Roe ," Jean Yi and Amelia Thomson-DeVeaux write at FiveThirtyEight . But "abortion is a thorny issue in American life. It's not something people like to talk about, and it's not something people know that much about."

Oliver talked about it in great depth, and strongly advocated for abortion rights, passionately and with sometimes NSFW language. But "we may now also need to shore up all the other rights supposedly guaranteed by Supreme Court rulings, from voting rights to gay marriage, because the fact is, under the current Supreme Court, your basic rights today could become crimes tomorrow," he argued, and that shoring-up will take work and sustained commitment. "Anti-choice advocates worked really hard for a really long time to ensure that Roe would not be permanent, but the thing is, its undoing doesn't have to be, either."

 
 
 
Sean Treacy
Professor Expert
5.1  Sean Treacy  replied to  JohnRussell @5    2 weeks ago

I know when I want the intricacies of a Supreme Court opinion explained, I look to far left  English comedians with no legal training to explain them. 

 
 
 
JohnRussell
Professor Principal
5.1.1  seeder  JohnRussell  replied to  Sean Treacy @5.1    2 weeks ago

We should not be basing our laws in 2022 on the opinions of British judges from 1675. As we can see, Hale had some opinions that have not stood the test of time. 

 
 
 
Sean Treacy
Professor Expert
5.1.2  Sean Treacy  replied to  JohnRussell @5.1.1    2 weeks ago

hale had some opinions that have not stood the test of time. 

I agree. What about the common law  legal authorities cited by those defending Roe? Do they get a pass on  marital rape? 

 
 
 
Drinker of the Wry
Freshman Expert
5.1.3  Drinker of the Wry  replied to  JohnRussell @5.1.1    2 weeks ago
We should not be basing our laws in 2022 on the opinions of British judges from 1675.

The US legal system came from England.  It formed the basis of colonial law.  One can draw a line connecting the Magna Carta, English Common Law, Colonial Law, US Constitution and US State Law.  

 
 
 
Texan1211
Professor Principal
5.1.4  Texan1211  replied to  Sean Treacy @5.1    2 weeks ago
I know when I want the intricacies of a Supreme Court opinion explained, I look to far left  English comedians with no legal training to explain them. 

The left's favorite comedians, er, make that newscasters, sure are a talented lot, aren't they?

 
 
 
Ozzwald
Professor Quiet
5.2  Ozzwald  replied to  JohnRussell @5    2 weeks ago
He also argued that a husband cannot be guilty of a rape committed upon his wife

We may be getting a clue as to the next "right" this right wing fringe SCOTUS is going to take away.

 
 
 
Texan1211
Professor Principal
5.2.1  Texan1211  replied to  Ozzwald @5.2    2 weeks ago
We may be getting a clue as to the next "right" this right wing fringe SCOTUS is going to take away.

And maybe Martians will invade us next week, too.

Stay tuned!

 
 
 
Greg Jones
Professor Guide
5.2.2  Greg Jones  replied to  Ozzwald @5.2    2 weeks ago

Your right to have an abortion won't be "taken away". Roe won't be overturned, but it will be modified and clarified because it was wrongly figured in the first place

 
 
 
Ozzwald
Professor Quiet
5.2.3  Ozzwald  replied to  Greg Jones @5.2.2    2 weeks ago

Roe won't be overturned, but it will be modified and clarified because it was wrongly figured in the first place

Care to explain how this inside knowledge has come to you?  The leaked document says otherwise.

 
 
 
Greg Jones
Professor Guide
5.2.4  Greg Jones  replied to  Ozzwald @5.2.3    2 weeks ago

What does the leaked document say?

 
 
 
Ozzwald
Professor Quiet
5.2.5  Ozzwald  replied to  Greg Jones @5.2.4    2 weeks ago

What does the leaked document say?

Well, it is freely available on the internet for anyone to view.  So which language would you like me to post it in?  If you haven't been able to read it yet, English must not be ideal for you.

 
 
 
Greg Jones
Professor Guide
5.2.6  Greg Jones  replied to  Ozzwald @5.2.5    2 weeks ago

So you're not able to post it.

 
 
 
Tessylo
Professor Principal
5.2.7  Tessylo  replied to  Greg Jones @5.2.6    2 weeks ago

Why would he do that because you fail to look up the truth for yourself?

 
 
 
Dulay
Professor Principal
5.2.8  Dulay  replied to  Greg Jones @5.2.6    2 weeks ago

It's at the link in the seeded article. It merely requires adulting to access. 

 
 
 
Ozzwald
Professor Quiet
5.2.9  Ozzwald  replied to  Greg Jones @5.2.6    2 weeks ago

So you're not able to post it.

So you can't read the English version?

 
 
 
Hallux
Sophomore Principal
6  Hallux    2 weeks ago

All laws have their foundations rooted in epochs older than what the Western 'intelligencia' refer to as civilization. That Alito illustrates his argument by quoting someone who is flawed by today's standards is an error in judgement ripe to be attacked. Had any of the 'liberal' judges quoted him in a ruling, 'conservatives' who believe 1776 is year 0 would be jumping all over them. It is becoming exceedingly difficult to distinguish between rubber and glue.

 
 
 
Sean Treacy
Professor Expert
6.1  Sean Treacy  replied to  Hallux @6    2 weeks ago
Had any of the 'liberal' judges quoted him in a ruling, 'conservatives' who believe 1776 is year 0 would be jumping all over them.

You mean like Blackmun citing him in the Roe case? 

 
 
 
Hallux
Sophomore Principal
6.1.1  Hallux  replied to  Sean Treacy @6.1    2 weeks ago
Blackmun

... received duffle bags full of hate mail.

 
 
 
Sean Treacy
Professor Expert
6.1.2  Sean Treacy  replied to  Hallux @6.1.1    2 weeks ago
received duffle bags full of hate mail.

Because of Hale's opinions on other matters?  Feel free to cite any proof of that. 

 
 
 
Hallux
Sophomore Principal
6.1.3  Hallux  replied to  Sean Treacy @6.1.2    2 weeks ago

In case you have not noticed, political dialogue has moved into the fringe areas of both the Left and the Right.

 
 
 
Dulay
Professor Principal
6.1.4  Dulay  replied to  Sean Treacy @6.1    2 weeks ago

In a footnote, among a half dozen other references. Oh, and BTFW, those references PROVE that under English Common law, women had the right to an abortion prior to 'quickening'. Alito desperately tries to ignore that, as it seems do you. 

 
 
 
Drinker of the Wry
Freshman Expert
6.1.5  Drinker of the Wry  replied to  Dulay @6.1.4    2 weeks ago
Alito desperately tries to ignore that, as it seems do you. 

He didn't ignore it at all, are you agreeing that English Common law is relevant in making this decision?

 
 
 
Sean Treacy
Professor Expert
6.1.6  Sean Treacy  replied to  Dulay @6.1.4    2 weeks ago

Alito desperately tries to ignore that, as it seems do you. 

You don't seem to understand anything that's happening. 

 
 
 
Dulay
Professor Principal
6.1.7  Dulay  replied to  Sean Treacy @6.1.6    2 weeks ago

What part of that sentence don't you understand? 

 
 
 
Dulay
Professor Principal
6.1.8  Dulay  replied to  Drinker of the Wry @6.1.5    2 weeks ago
He didn't ignore it at all,

Sure he does. 

are you agreeing that English Common law is relevant in making this decision?

No. What lead you to ask that ridiculous question? 

 
 
 
Drinker of the Wry
Freshman Expert
6.1.9  Drinker of the Wry  replied to  Dulay @6.1.8    2 weeks ago
What lead you to ask that ridiculous question?

Your use of it to buttress your point.  

 
 
 
Dulay
Professor Principal
6.1.10  Dulay  replied to  Drinker of the Wry @6.1.9    2 weeks ago
Your use of it to buttress your point. 

I have argued against Alito's use of Common Law to buttress his ruling.

I also argue that Alito's claim that the analysis of Hale, Blackstone et al bolsters his argument is false. 

 
 
 
Sean Treacy
Professor Expert
6.1.11  Sean Treacy  replied to  Dulay @6.1.7    2 weeks ago

[deleted]

 
 
 
Tacos!
Professor Expert
7  Tacos!    2 weeks ago

Citing to Hale simply gives you the common law perception of abortion at the time. It’s a common thing to do with legal concepts that have a history stretching back centuries into English Common Law - which, like it or not, has long influenced American law. We saw it in the original Roe opinion. That doesn’t necessarily mean that 21st century laws should be exactly the same.

It’s probably pretty easy to find things about any judge, or his decisions, from the 17th century that would make us uncomfortable 300 or 400 years later. That doesn’t mean we should ignore history but it doesn’t require that we emulate it either.

 
 
 
afrayedknot
Freshman Quiet
7.1  afrayedknot  replied to  Tacos! @7    2 weeks ago

“…but it doesn’t require that we emulate it either.”

If there is one thing to be garnered from this entire debate, a consensus will never be reached as to just when ‘life’ begins.

Somehow, in this uniquely divisive case, we have placed the freedom of personal choice as a secondary consideration, when, in fact, that should be the primary goal of every decision.

That is if one believes in our founding principles, regardless of how far back one wishes to go in their establishment. 

 
 
 
Greg Jones
Professor Guide
7.1.1  Greg Jones  replied to  afrayedknot @7.1    2 weeks ago
"If there is one thing to be garnered from this entire debate, a consensus will never be reached as to just when ‘life’ begins."

It certainly doesn't begin at the moment of birth

 
 
 
afrayedknot
Freshman Quiet
7.1.2  afrayedknot  replied to  Greg Jones @7.1.1    2 weeks ago

Thus proving my point. 

 
 
 
Dulay
Professor Principal
7.1.3  Dulay  replied to  Greg Jones @7.1.1    2 weeks ago

Constitutional rights do.

 
 

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