Justice Alito Wants You To Be Governed By The Laws Of The 17th Century

Do we really want to go back to witchcraft trials?

I often pay homage to Margaret Atwood’s The Handmaid’s Tale. The Trump years lent themselves to such comparisons, and his leaving office has hardly tamped down fears of a dystopian future. Those concerns continue as many of the forces unleashed by Trump continue to rumble malevolently.

In the May 13, 2022, issue of The Atlantic, Atwood wrote of her journey in writing The Handmaid’s Tale and what she, as a Canadian citizen, sees happening in America today. It’s not a pretty picture that she paints.

In the early years of the 1980s, I was fooling around with a novel that explored a future in which the United States had become disunited. Part of it had turned into a theocratic dictatorship based on 17th-century New England Puritan religious tenets and jurisprudence. I set this novel in and around Harvard University—an institution that in the 1980s was renowned for its liberalism, but that had begun three centuries earlier chiefly as a training college for Puritan clergy.

In the fictional theocracy of Gilead, women had very few rights, as in 17th-century New England. The Bible was cherry-picked, with the cherries being interpreted literally. Based on the reproductive arrangements in Genesis—specifically, those of the family of Jacob—the wives of high-ranking patriarchs could have female slaves, or “handmaids,” and those wives could tell their husbands to have children by the handmaids and then claim the children as theirs.

So Atwood’s novel had some historical context. In that sense, it wasn’t a stretch to take 17th-century New England and transport it to today. When one looks at what’s happening within the Evangelical Christian community, it’s pretty easy to imagine The Handmaid’s Tale becoming a reality. The Christian Nationalist movement would happily turn America into Gilead or something closely approximating it. It would be every bit as corrupt, elitist, and unChristian as Atwood’s Gilead.

“Cherry-picking” is still the favorite sport among the American Taliban, into which the Christian Nationalist movement fits quite nicely. They use, misuse, and manipulate Scripture to conveniently support their fears and prejudices. Their focus on hyper-masculinity, guns, and “otherizing” those who aren’t White, Christian, Conservative, and heterosexual is perfect for placing themselves at the top of the social/political/economic/theological food chain.

The Gospel of Jesus Christ is useful to the American Taliban only insofar as it can be employed to justify their lust for power and political control. Anything they can’t use for that purpose is cast aside and ignored as irrelevant.

Lest anyone doubt that this is the direction America is moving, consider the Supreme Court’s recent blowing past the traditional respect for settled law (Stare decisis?? Who needs it?) to strike down Roe v. Wade. The Court’s decision didn’t abolish a woman’s right to abortion, but it did throw it back to the states. As a result, some red states are now trying to legislate complete abortion bans, with no exceptions for rape, incest, or the mother's health.

Indiana has already done so. In the state of Indiana, a woman’s uterus is now the property of the State- perhaps not officially, but for all intents and purposes, that’s the reality.

It is now the middle of 2022, and…the Supreme Court of the United States… would overthrow settled law of 50 years on the grounds that abortion is not mentioned in the Constitution, and is not “deeply rooted” in our “history and tradition.” True enough. The Constitution has nothing to say about women’s reproductive health. But the original document does not mention women at all.

Women were deliberately excluded from the franchise. Although one of the slogans of the Revolutionary War of 1776 was “No taxation without representation,” and government by consent of the governed was also held to be a good thing, women were not to be represented or governed by their own consent—only by proxy, through their fathers or husbands. Women could neither consent nor withhold consent, because they could not vote. That remained the case until 1920, when the Nineteenth Amendment was ratified, an amendment that many strongly opposed as being against the original Constitution. As it was.

As Atwood points out, women have been nonpersons in America for longer than they’ve been persons. (They couldn’t get their own credit card without a man until the ‘70s) So it’s not unreasonable to think that Justice Alito’s reasoning in Dobbs v. Jackson might be used to repeal voting rights for women.

If stare decisis no longer matters to the Court's 6-3 Conservative majority, they could begin going after other rights Americans have accepted as settled law. Interracial marriage. Same-sex marriage. The right to interstate travel. It’s a long list, but the Court could decide to whittle away at it.

That may be an alarmist view, but that we’re even in a position to have the conversation is frightening. It’s unsettling to think that five Conservative justices lied openly during their Senate confirmation hearings about their respect for stare decisis.

Imagine if your boss discovered that you had lied about something important during the interview for your current job. You could rightfully expect to be terminated from that job, and you’d probably deserve it. Of course, those Supreme Court justices could be impeached for their dishonesty, but there’s virtually no chance of that happening. So five judges from the American Taliban/Federalist Society will continue to sit on the Supreme Court even as they claim to be impartial.

Right. And I’m the Queen of Denmark.

Let’s look at the First Amendment. It reads: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” The writers of the Constitution, being well aware of the murderous religious wars that had torn Europe apart ever since the rise of Protestantism, wished to avoid that particular death trap. There was to be no state religion. Nor was anyone to be prevented by the state from practicing his or her chosen religion.

It ought to be simple: If you believe in “ensoulment” at conception, you should not get an abortion, because to do so is a sin within your religion. If you do not so believe, you should not—under the Constitution—be bound by the religious beliefs of others. But should the Alito opinion become the newly settled law, the United States looks to be well on the way to establishing a state religion. Massachusetts had an official religion in the 17th century. In adherence to it, the Puritans hanged Quakers.

The Alito opinion purports to be based on America’s Constitution. But it relies on English jurisprudence from the 17th century, a time when a belief in witchcraft caused the death of many innocent people.

The problem is that the American Taliban want to create their very own Gilead. They want to live in an America set up for their convenience and comfort and guided by their own rules. They want all citizens, even the ones who don’t share their narrow beliefs, to be governed by their laws. Those citizens who refuse to play ball will almost certainly, as in Atwood’s Gilead, end up hanging on a wall to serve as an example of what happens to the disobedient.

If Alito’s ruling in Dobbs v. Jackson becomes settled law, America may well be on its way to establishing a state religion as Massachusetts did in the 17th century. That didn’t turn out so well for non-Puritans, and a 21st-century state religion probably wouldn’t, either.

So much for the 1st Amendment’s Establishment Clause.

If Justice Alito wants you to be governed by the laws of the 17th century, you should take a close look at that century. Is that when you want to live?

Of course, there is a way to keep this from happening, but it will require Americans to get off their asses in November and exercise their franchise and VOTE. Then, if we can keep Republicans out of public office, we can protect our freedoms. Democrats may not be a perfect solution, but they’re a damned sight better than the half-wits, nonentities, and fascist wannabes that the GOP seems to be offering these days.

The Handmaid’s Tale doesn’t have to become a documentary. It can remain a work of brilliant, if frightening, fiction. The problem is that we’re far too close to allowing Christian Nationalist fascists into government at all levels, and once they’re in, they’re going to be tough to flush out.

I hope that I’ll be proven wrong and just another cranky alarmist. Nothing would make me happier. But what if I’m not? Do you want to go back to living in the 17th century with the American Taliban at the controls? Do you want people like Marjorie Taylor Greene calling the shots? It would be a cross between Idiocracy and The Handmaid’s Tale.

That’s not a book I’d care to read or a movie I’d like to see.