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Alito’s ‘no mention’ reasoning

Leaked draft offers shaky standard on validity of rights

With the leak of Justice Samuel Alito’s draft of an opinion in a case that could overturn Roe v. Wade, many people seem to think they know where the Supreme Court is headed on the issue of abortion. Be that as it may, the curious part of Alito’s thinking is how he got there. With that, he raises an argument that dates to the founding of the republic.

This all seems like the province of lawyers and judges. But the Constitution belongs to all Americans and as such we all have a voice. It behooves us as citizens to use it.

Abortion has been a hot topic in American politics, religion and law for decades. But while we have all heard the arguments over and over again, in his draft, Alito injected another line of thinking. Referring to the 1973 decision in Roe, Alito complained that, “Even though the Constitution makes no mention of abortion, the court held that it confers a broad right to obtain one.”

Is “the Constitution makes no mention” now the standard by which to judge the legitimacy of our rights? If so, what other things does the Constitution fail to mention?

Given that the Constitution was written and ratified in 1787, words like aircraft and automobile, radio and television quickly come to mind. The only mass communication specifically protected in the Constitution is the press. (And as amendments, the Bill of Rights is part of the Constitution.)

Radio and television can easily be seen as protected under the explicitly expressed freedom of speech. Cars and planes, however, are a bit tougher to explain. And here we start to get into the sort of penumbra that Alito would likely decry.

Penumbra is a term from astronomy, meaning essentially a gray area, that judges began using in the 19th century to describe rights granted by implication. So, while the Constitution makes no mention of cars or planes, it is no stretch to suggest that free people have the right to move about.

There are more challenging examples. The Constitution also does not include the word semi-automatic. It does, in the Second Amendment, guarantee the right to “keep and bear arms,” but in the 1780s, “arms” most often meant swords, pikes and muzzle-loading muskets. If Alito’s “no mention” standard is applied, how does that right extend to a Glock?

Of course, things could go the other way, too. “Arms” in the 18th century could also include warships, which were that era’s ultimate weapon. They were also sometimes privately owned. So, does the inclusion of the all-encompassing word “arms” thus guarantee individual Americans the right to “keep and bear” Javelin missiles or tactical nukes?

Alito’s thinking has also come up before. When the Bill of Rights was first proposed, some critics opposed adopting it, fearing that enumerating certain rights would suggest that those were Americans’ only guaranteed rights. His “no mention” reasoning suggests they had a point.

Americans’ rights cannot turn on the existence or lack of a “mention.”