In speeches, articles, and books, the American “Founding Fathers” are lauded and lionized for the foundational framework of the Constitution that literally changed the world. America, imperfect, argumentative, and contentious, nevertheless has forged the greatest country in the history of the world.
Our standard of living, our entrepreneurship, our higher educational system, our culture, and our freedoms are envied around the world. Legal and illegal immigration draws millions around the world to our front door. To a large degree our immigration problems are a testament to our success and the American dream of opportunity.
But the “founding mothers” are nowhere to be found. The Declaration of Independence states: We hold these truths that all MEN are created equal. It certainly does not say all men and WOMEN are equal. To men of the 18th century such an idea was not only inconceivable, but laughable. Gender roles were rigid and mostly fixed. A female was generally under the thumb of her husband and then transferred to be under the thumb of her husband.
It is nearly impossible for us in the 21st century to grasp the lives of those living at the birth of our country. Roughly 90% of the population lived on a farm. Without birth control most women had anywhere from six to twelve pregnancies. Tragically, infant and child mortality were high (50 times what it is today) and every family or extended family shared a common loss. Physical strength was necessary on a farm and the male role of provider was a given. The female role was largely confined to raising many children and being a farm aide whenever needed. Female education of any kind was either non-existent or rudimentary. Life expectancy in those days was much shorter and people married young with a first child often coming in their late teens or very early twenties. Electricity, along with trains, cars, and airplanes was utter science fiction. Imagine life without a telephone! For most women, controlling their fertility was a matter of ignorance or luck.
Supreme Court Judge Samuel Alito wrote the major decision in the Dobbs case and tried to parse the words of the Constitution as it relates to abortion. It is ironic that he tries to consult the founding fathers, other expositors of the law, along with past historical edicts, mores, decrees, and customs without noticing a glaring flaw in his judgment. Judge Alito suffered from a blind spot in plain sight. He took no notice of the fact in his analysis that all these decisions were taken by men. He consults the founding fathers but never the founding mothers, stuck in the kitchen with half a dozen kids trying to get through the day. Judge Alito and his fellow judges viewed everything through a patriarchal lens. Judge Alito failed to recognize that the historical deck was all stacked against women who had no representation. Indeed, women were expected to stay out of men’s affairs and deliberations on nearly all topics. Women were to know their place. Women in olden days were expected to accept their second-class status. Women were to be seen, but not heard. Men decide.
A prevalent viewpoint among conservative jurists is the concept of “originalism” in which court cases should be decided upon what the original legislator’s “intent” was when writing new laws. The idea is to take a “time machine” back in time in an attempt to parse the meaning of what the legislators meant to accomplish. However, “originalism” is always an attempt to read the minds of men (not women!) from many generations ago. .
The idea of originalism also has some obvious inherent weaknesses. Trying to parse the words of those (men) from a long time ago suggests the progress of mankind over centuries is stuck in amber or immersed in formaldehyde. Attitudes toward women and their role in society today is light years away from our ancestors. But parochialism, historical custom, and religious norms do not easily bend toward the future.
One can only imagine what the “founding mothers” would have demanded in the Constitution and other laws throughout the American story. But is nearly a sure thing that women would have demanded more freedom and opportunity in their lives. They would certainly have wanted more rights and protections from abusive husbands, drunk husbands, and domineering husbands that left them no choice in their life. It would be hard to believe they would not have demanded more control over their own fertility and opportunities in life for themselves and their children through education and free agency.
Judge Alito and his concurring judges never factored in the wants or desires of the “founding mothers” who helped build a great country. What if all the players in this great drama past and present were all female instead of nearly all males? Something to reflect upon.