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The misogynist anachronisms of Sam Alito

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A deep dive into some of the other views of Henry de Bracton, whose 13th century jurisprudence was cited approvingly by Sam Alito in his draft Daily Caller blog overruling Roe v. Wade, because history is only bad when Harry Blackmun uses it:

So true! Let’s take a closer look at the 13th-century work from which Alito draws in his cruel and unusual draft — and perhaps glimpse more of the world to which Alito and his fellow conservatives on the court would return us.

In Bracton’s account, “Women differ from men in many respects, for their position is inferior to that of men.” Alito didn’t cite that passage.

Bracton also outlines procedures for “viewing a woman to discover whether or not she is pregnant” in which “discreet women” should in certain instances “carefully examine her by feeling her breasts and abdomen and in every way” to make sure she wasn’t faking. If the exam was inconclusive, the woman could be locked in a “castle at her own cost” where the exam would be repeated daily. Once the woman was found to be pregnant, “the time of conception, how, when, and where, and at what time she believes she is to give birth” was to be made “known to our justices at Westminster.”

Should there be suspicion of fraud, Bracton details a requirement to calculate “from the time at which she alleged that she conceived” to determine true fatherhood, as well as the view that “the woman cannot exceed the gestation period by a single day, even where the issue dies in utero or turns into a monster.”

Welcome to the post-Roe world!

In the treatise Alito leans on, women do have certain rights — if they are chaste. “When a virgin is defiled,” Bracton writes, “let her defiler be punished in the parts in which he offended. Let him thus lose his eyes which gave him sight of the maiden’s beauty for which he coveted her. And let him lose as well the testicles which excited his hot lust.” The truth of the victim’s accusation would “be ascertained by an examination of her body, made by four law-abiding women sworn to tell the truth as to whether she is a virgin or defiled.”

Alito’s model does not offer much hope for those trying to salvage American democracy. “The king has no equal within his realm” and “is the vicar of God,” Bracton writes, and “there is no greater crime than disobedience.” Some men “are above others and rule over them,” including dukes, earls and barons, whom kings invest “with great honour, power and name when they gird them with swords, that is, with sword belts. … Belts gird the loins of such that they may guard themselves from the luxury of wantonness.”

“I am intrigued by this utopian vision and wish to subscribe to its newsletter.” –Sam Alito

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