As the author of stories about a teenager who hops into the American past, I’ve thought deeply about the 1800s, and I’d like to offer a few thoughts to our Supreme Court justices.
Cherry-picking is when you pluck a convenient example and pretend that you’ve proven your point. Like saying that when the 14th Amendment was ratified, abortions were condemned and illegal, so Roe v Wade must be overturned. Before we accept that cherry, let’s see what our nation looked like in 1868.
Several southern states had not been readmitted because of their roles in the Civil War, and couldn’t vote in that year’s election. Does our Supreme Court propose to exclude Mississippi, Virginia, and Texas from midterms? That would give Democrats a big advantage. And what about the Western territories? We only recognized 37 states. The non-voting territories of 1868 are Red States today.
Ratification was about extending rights to former slaves, who proved instrumental in giving President Grant his win. It was before Jim Crow restrictions and stands as a shining example of progress toward open, fair elections. Does the court plan to wipe away new voting restrictions that limit Black votes today?
In the years after 1868, the industrial revolution reached full swing and millions of immigrants came to work in factories. What a great way to revitalize our economy—to welcome millions more immigrants! What? Republicans don’t acknowledge this element of their benchmark period either?
Cannabis wasn’t regulated until a 1937 tax, nor criminalized nationally until 1970, so the 1868ers will now become eager advocates of legalization, right?
The Fort Laramie treaty of 1868 should be honored, which will transfer vast swaths of land back to the Sioux Nations. Will the justices address broken treaties next?
What about calls to increase the number of justices? In 1868 there were eight, not nine, and the court’s size had been altered six times, so I guess that’s on the table too.
We’ve all heard of the shootout at the O.K. Corral, but we forget that Marshall Earp and Doc Holliday shot Billy Clinton and the McLaury brothers because they didn’t turn in their guns when they entered town. It was to enforce strict gun control laws, which were common in frontier towns.
But don’t concealed-carry rights go way back in history? Not until a 1978 Florida rule, five years after Roe v. Wade.
Let’s return to the matter of abortions. In the court’s new ruling, we are told that by 1868 the illegality of abortion was well established, however, ending unwanted pregnancies was a very common practice then. In the early 1800s, abortion was legal and commonplace. By the end of that century, a patchwork of regulations had sprung up. When did the justices pick their prized cherry? Not in 1868.
The claim that the court can read the minds of the ratifiers of the 14th Amendment might be called the Biggest Lie because unlike Trump’s, this one actually worked. But then again, they only had to lie to themselves, since there are no checks or balances to stop a runaway court.
Alex Hiam is the author of the magical-history novels Silent Lee and the Adventure of the Side Door Key and Silent Lee and the Oxford Adventure, available through your local bookstore or Amazon.