Other words Alito didn't find in the Constitution

White men giving themselves rights in 1787.

Poor Justice Alito.  He went looking in the Constitution for a right to abortion and didn’t find one, so he and four other justices – three of them appointed by Donald Trump – decided that if it’s not in the words of the Constitution, a right to an abortion doesn’t exist, and so Roe v Wade and Casey v Planned Parenthood must be overruled.

Hmmm.  Let’s see if we can find some other stuff that the 55 men who crafted the Constitution in 1787 left out. 

Slavery.  Can’t find it anywhere.  It was a fact of life at the time of the nation’s founding, and not just in the so-called slave states of the Deep South.  Slaves were owned, for example, by some of the prominent land-owning families in what is now known as the Hamptons, from which I have recently moved.  There were slaves in Sag Harbor, and on Shelter Island, and East Hampton and South Hampton and Bridgehampton, and slaves in Wainscott and Amagansett, too.  They labored on farms without pay, they provisioned whaling vessels and ships bound for the islands of the Caribbean where families from Shelter Island, among other places, owned sugar plantations.

The authors of the Constitution did a lot of tap dancing to get around the issue of slavery.  The ownership and exploitation of human beings was not universally accepted in the 13 colonies that formed the United States, and so we get the tale of the so-called “three-fifths compromise,” which counted slaves (without naming them as such) as three-fifths of a person for the purposes of the census, which apportioned representation among the newly-formed states in the government of the newly-formed United States.  But isn’t it interesting that they saw no need to use the words “slave” or “slavery” in the founding document of the nation?

Black.  Negro. Not in there either.  Nor is the word race, at least not until the 15th Amendment was added to the Constitution in 1870 as the third and last of the Reconstruction amendments after the Civil War.  Finally they got around to mentioning it by allowing that the right to vote could not be abridged or denied “on account of race or color or any previous condition of servitude.”

Woman.  Women.  Female.  Didn’t come up on the radar of the founders, apparently, even though the 55 men who conceived of the Constitution each had a mother and most were married to a woman and had a daughter or daughters in their household.  This of course was finally corrected, if that is the word for it, in 1920 when the 19th Amendment was ratified, but even then none of the above words appeared.  Instead, the amendment was worded to say that the right to vote could not be abridged or denied on account of “sex.”  Even when the Equal Rights Amendment was proposed and passage was attempted late in the 20th Century, the above list of words didn’t make the cut.  The ERA used the same language of the 19th amendment, this time saying that “equality of rights under the law” couldn’t be abridged or denied on account of “sex.”

But here’s the most important one of all:

White.  Nowhere in the Constitution does the race of the men who crafted it appear.  You have to ask the question, don’t you, why this is so?  The answer is stunningly simple.  The men who wrote the founding document of the nation just assumed that all the laws they were laying forth and all of the jobs they were creating such as president and senator and representative and judge and all of the rights they were mandating – the whole lot of it would apply to them, to white men, and by their absence, in many but not all cases, to nobody else.

The end result, of course, is that white men have had no, or at least very little, cause to fight for rights, because they have already been granted  them.  Let’s see some of the rights white men have not had to fight for:  property, as in the right to own property?  Nope.  Voting?  Nope.  Holding offices of government?  Nope. 

And here’s a good one:  healthcare.  So long as they could afford to pay for it, white men have enjoyed the right to whatever healthcare they wanted.  Nowhere in the Constitution does it say, for example, that there is a right for a man to get a vasectomy, to have his vasa differentia cut or tied in order that he not be able to impregnate a woman by intercourse. 

White men, in fact, no men had to fight for the right to obtain a vasectomy because the right was there all along.  Like many of the other rights enjoyed by white men, it was just assumed, and so it existed.  White men didn’t have to fight for the right to vote because it had been there all along.  Black men had to fight for that right, and so did women, black and white.  But not white men.

The founders wrote an amendment to the Constitution at least some of them apparently thought would deal with these, shall we say, ancillary rights that are not found in the language of the document.  The Ninth Amendment states, in its entirety, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”  Nice of them, wasn’t it, to put in that little genderless grace note, “the people.”  And you would think that some of these jurists like, say, Samuel Alito, would find in the language of the Ninth Amendment at least some of the kinds of rights at issue in the case his leaked decision was about, Dobbs v Jackson Women’s Health Organization, which of course dealt with the issue of the word he couldn’t find in the Constitution, abortion.

Most, but thankfully not all, of the unenumerated rights the founders suggested belong to “the people” even though they’re not in the language of the Constitution were at least in Alito’s pinched reading of the document intended for white men.  Because we can’t have white men actually getting down and dirty and fighting for their rights, can we?  Samuel Alito would have it that white men’s rights don’t have to be listed in the words of the Constitution because they’ve been there all along.  Of course they have.  How silly of us to have thought differently.