In 1761, Massachusetts attorney James Otis represented a merchant in what is known as Paxton’s Case. At issue was whether the British, in exercising a search under the authority of Writs of Assistance, searched the merchant’s warehouse infringing on his property rights.
Otis’ argument was that the Writs were invalid, and thus the British infringed on the merchant’s property rights, one of the many rights that people possessed in the State of Nature and retained when they banded together to form what became a government.
I wanted to open with this case, contemporaneous in time with that used by Justice Alito in Dobbs to support his assertion that abortion was historically criminalized, from the 18th Century to flesh out what I believe is a more probative historical precedent, one rooted more deeply in the American legal and political tradition.
Alito cites a case from 1732 that involved a woman sentenced to three years in prison for having an abortion. The citation for this case was something called Gentleman’s Magazine, a secondary source and a dodgy one at that. For a case as important as Dobbs, it’s fair to ask why there was no case citation.
On the other hand, if you have time and access, you can read Paxton at Mass. Repts., 51 469 (1761). Spoiler alert: Otis might have won the argument over “rights” but he lost the case. It didn’t help that the judge in the case was Thomas Hutchinson, Governor of Massachusetts Bay. Working under similar conflict of interest policies as our current Supreme Court, it’s not too great a leap to wonder if he sought a little job security?
There’s a lot to unpack here. What is the State of Nature? What are the rights enjoyed in the State of Nature? Who enjoys these rights? And how many rights were retained by the people once they exited the State of Nature and formed what became a government? And what is the government’s primary responsibility?
What follows is a brief distillation of a very complex theory.
Let’s begin with the concept of the State of Nature. Was there ever such a condition? Probably. We know from archeologists and anthropologists that early humans lived either individually, or in small often kindred groups. It would be understated to say that early humans lived a primitive existence, the kind of life described by Thomas Hobbes as “nasty, brutish and short.”
Hobbes saw the State of Nature as a harsh existence with each individual exposed to threats beyond the ability to defend against. John Locke saw Nature as less harsh than Hobbes but certainly providing difficult conditions in which to live.
David Hume doubted whether the State of Nature ever really existed. He contended that there was no empirical evidence to support its existence. But whether the State of Nature ever empirically existed is besides the point. The State of Nature provides a philosophical construct to help explain the rights all humans possessed and ultimately the creation of a political state. (NOTE: I use ”humans,” “individuals,” “their” to get around using “men.” However, “man” and “men” were used in State of Nature writings.)
What rights did humans have? Using Locke on whom Otis relied, each human had the inalienable right to life, liberty and property (or as Jefferson would write “happiness” in place of property). And each person had a right to self defense against any threats to those rights. Otis would expand possession of these rights to Africans brought to North America as slaves because slavery violated the liberty rights of the enslaved. Otis was an outlier here and like most State of Nature philosophers and adherents, he did not acknowledge that the indigenous populations enjoyed these rights.
In the State of Nature, these rights were plenary - so long as they didn’t interfere with another’s rights. For example, an individual could buy, sell, or lease his own property but couldn’t lease out a neighbor’s property. The neighboring owner could kick the lessee of the land and then seek recompense from the lessor. The lessee would also seek redress from … someone. But where would the parties go to resolve these issues? Clearly it couldn’t left to the strongest or more clever of them to prevail.
Therefore the need to form an entity charged with keeping order, resolving disputes, and protecting the rights of each individual. And this is where the idea of government comes from. Individuals surrender a portion of their rights to a government, which in turn is strong enough to protect the rights retained by the “people.” Indeed, it’s the duty of the government to defend the life, liberty, and property interests of the people it serves.
This brings me to Alito’s draft in Dobbs. At stake in this case is not only abortion rights, but a whole panoply of rights held by both men and women. The first eight amendments to the Constitution contain specific rights - speech, press, religion, right to an attorney, and so forth. But what of other unenumerated rights such as those raised in this case?
Alito said in his draft:
“But our decisions have held that the Due Process Clause (of the Fourteenth Amendment) protects two categories of substantive rights. The first consists of rights guaranteed by the first eight amendments. Those amendments originally applied only to the federal government.…but this Court has held that the Due Process Clause of the Fourteenth Amendment ‘incorporates’ the great majority of those rights and thus makes them equally applicable to the states. … The second category - which is the question here - comprises a select list of fundamental rights not mentioned anywhere in the Constitution.
In deciding whether a right falls into either of these categories, the Court has long asked whether the right is ‘deeply routed in [our] history and tradition’ and whether it is essential to our Nation’s ‘scheme of ordered liberty.’” Draft, page 11 (citations omitted) (Italics mine)
Our “history and tradition.” This is the slippery slope that Alito and his majority would take us down. The “liberty” interest is historically, politically, and legally rooted in our history. It was acknowledged and and expanded throughout English law. This tradition was exported to the North American colonies beginning in 1607. American colonial lawyers were trained in the common law that protected liberty interests of citizens.
Attorneys such as Otis argued liberty interests before the courts. In the Federalist Papers, James Madison referred to the rights born in the State of Nature. It was discussed in the First Congress’s discussion about what became the Ninth Amendment. The “inalienable right to life, liberty, and happiness” is enshrined in the Declaration of Independence on display at the National Archives. (Italics mine)
We have seen that liberty has become more expansive and inclusive over time. Most aspects of how we live our daily lives are not enumerated in the Constitution. We can live where we want, live as we want, worship any God we wish or to no God at all. We enjoy privacy rights in our interactions with doctors, lawyers, and clergy. We are secure from arbitrary government intrusion in our lives.
If the liberty right is not a part of our history and tradition, then what is?
Part III will focus on Roe and its predecessor Griswold. Hopefully the history, rights theory and the law will tie everything together and show what a Sham Alito’s draft really is.
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