“Wilson’s position was beyond outlandish. He believed that the presence of just one American should immunize a reserve military vessel of a belligerent power under orders to attack enemy submarines and carrying military contraband through a war zone. It was a nonsensical claim, understandable only as policy calculated to allow Washington to enter the war on behalf of the Allies. To make such a position the cause for war was murderous partisanship.”
“Noting that “the Constitution makes no reference to abortion,” Alito argues that “no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment.” Although “that provision has been held to guarantee some rights that are not mentioned in the Constitution,” he says, “any such right must be ‘deeply rooted in this Nation’s history and tradition’ and ‘implicit in the concept of ordered liberty.'” Alito concludes that “the right to an abortion does not fall within this category.”
That analysis falls short in at least two crucial ways.
First, Alito fails to grapple with the argument that the right to terminate a pregnancy can be understood as a subset of the right to bodily integrity. As the legal scholar Sheldon Gelman detailed in a 1994 Minnesota Law Review article, the right to bodily integrity can be traced back to the Magna Carta. That makes it one of the many rights “retained by the people” (in the words of the Ninth Amendment) that were imported into the Constitution from English law. That right, in other words, is “deeply rooted” in American history and tradition.
Second, Alito’s draft opinion distorts the relevant legal history and thus misstates the historical pedigree of abortion rights. “When the United States was founded and for many subsequent decades, Americans relied on the English common law,” explains an amicus brief that the American Historical Association and the Organization of American Historians filed in Dobbs. “The common law did not regulate abortion in early pregnancy. Indeed, the common law did not even recognize abortion as occurring at that stage. That is because the common law did not legally acknowledge a fetus as existing separately from a pregnant woman until the woman felt fetal movement, called ‘quickening,’ which could occur as late as the 25th week of pregnancy.”
A survey of founding-era legal authorities confirms this view. William Blackstone’s widely read Commentaries on the Laws of England, first published in 1765, noted that life “begins in contemplation of law as soon as an infant is able to stir in the mother’s womb.” Under the common law, Blackstone explained, legal penalties for abortion applied only “if a woman is quick with child, and by a potion, or otherwise, killeth it in her womb.” That means abortion was legal in the early stages of pregnancy under the common law.
Blackstone’s writings had an important influence on America’s founding generation. In his 1790 Of the Natural Rights of Individuals, for example, James Wilson, a driving force at the Constitutional Convention in Philadelphia and a leading voice for ratification at Pennsylvania’s convention, repeated Blackstone’s gloss. “In the contemplation of law,” Wilson wrote, “life begins when the infant is first able to stir in the womb.”
At the time of the founding, no American state had the lawful power to prohibit abortion before quickening because the states adhered to the common law as described by Blackstone and Wilson. We might call this the original understanding of the states’ regulatory powers. That original understanding contradicts Alito’s assertion that abortion rights—at least during the early stages of pregnancy—lack deep roots in American history.”
“Unlike most accounts of the American conservative movement, Matthew Continetti’s The Right begins in the 1920s, when two Republican presidents returned the country to normalcy after World War I. The ideals of that era’s Republicans were not so different from those espoused by former President Donald Trump today: They believed in cutting taxes, restricting immigration, and protecting American industry through tariffs. But there was one fundamental difference: Presidents Warren Harding and Calvin Coolidge rejected the populism of their age. They aimed to preserve American institutions. Trump is more like William Jennings Bryan, riding the coattails of discontent. He represents a time, Continetti argues, when an increasingly apocalyptic conservative movement “no longer viewed core American institutions as worth defending.””
“Traditionally, conservative elites have tried to channel populist sentiments into a respectable and successful movement. No one had to grapple with this question more than Buckley, the founder of National Review. The usual conservative narrative says that Buckley legitimized conservatism by being a gatekeeper: In keeping the conspiracism of the John Birch Society and the radical individualism of Ayn Rand at arm’s length, he made it less likely that conservatives would be labeled extremists. In the case of the John Birch Society, Buckley wrote a 5,000-word essay, “The Question of Robert Welch,” that condemned the group’s founder, arguing that “the best thing Mr. Welch could do to serve the cause of anticommunism in the United States would be to resign.” Buckley’s purges are often held up as a great success, but the reality is that Welch did not resign and the John Birch Society continued to have influence.”
“Continetti’s major contribution comes in explaining how conservatism has changed since the end of the Cold War. Here he details the conflict between neoconservatives, such as Bill Kristol, and paleoconservatives, such as Pat Buchanan. With their dedication to the culture war and their opposition to foreign intervention and immigration, the paleoconservatives presaged Trump’s electoral success in 2016.
The paleocons lost the political battles of the 1990s and 2000s. But the War on Terror ultimately discredited the neoconservatives, opening the door for populist discontent to capture the Republican Party. The first manifestation of this was the Tea Party movement. While Continetti draws a straight line from this to Trump’s election, in reality the Tea Party encompassed several strands of conservatism (all populist in nature) with conflicting conceptions of what 21st century conservatism should entail. Sens. Rand Paul of Kentucky, Marco Rubio of Florida, and Ted Cruz of Texas all rode the Tea Party wave to victory in 2010–12, and all had very different visions for the future of the nation—and very different visions from Trump’s. Nonetheless, the anti-establishment politics that emerged in the wake of the Iraq War and the 2008 financial crisis ultimately brought Trump to power.
It was during this time, from 2010 to 2016, that Continetti believes “the populist American Right [became] less interested in preserving institutions than in tearing them down.” One could hardly think of a better instrument for that purpose than Trump. Trump condemned illegal immigration and trade with China, announced “support for a ban on Muslim entry into the United States,” and recalibrated “American politics along the axis of national identity.” Many conservatives initially condemned him, and National Review even released a special issue titled “Against Trump.” One of its contributors called the candidate “a philosophically unmoored political opportunist who would trash the broad conservative ideological consensus within the GOP in favor of a free-floating populism with strong-man overtones.” Nonetheless, Trump won.”
“When the Cold War ended in the ’90s, the United States possessed unrivaled economic and military power. Scholar Francis Fukuyama claimed the “End of History” and former Secretary of State Madeleine Albright asserted the centrality of American exceptionalism in her coinage, “the indispensable nation.”
Some argue that that unipolar moment was overstated. “Look, the Americans suffered from hubris after the end of the Soviet Union,” said Joseph Nye, a Harvard professor who has written widely about American power. “The unipolar moment, I think, was always illusory.”
At the end of the Cold War, the US did continue to hold itself out as the guarantor of security. “The United States appointed itself as responsible for peace, security, and democracy in Europe,” Stephen Wertheim, a historian of US foreign policy at the Carnegie Endowment for International Peace, told me. In response to ethnic cleansing in Bosnia, the United States, through NATO, took military action against Serbia. The intervention was relatively limited, and the outcome of it was a successful projection of US might.
But that unilateral moment, real or imagined, was short-lived.
The terrorist attacks on September 11, 2001, were not what challenged that global supremacy, argues Wertheim. Rather, it was the 20 disastrous years of overreach in America’s response. The invasions of Iraq and Afghanistan exposed the limits of US power.”