Missing the Paradigm Shift

A paradigm shift is “an important change that happens when the usual way of thinking about or doing something is replaced by a new and different way“.

I’ve been thinking a lot about the use of history. Some of that thinking was stimulated by a talk I heard recently at the Brookings Institute, given by retired Justice Stephen Breyer (which you can see here).

Breyer was talking in large part about his recent book, Reading the Constitution, which is (IMO) very, very good. Breyer rejects textualism because, well, to put my own spin on it, textualism is religious fundamentalism for judges. And just like fundamentalism, Breyer points out, the ‘originalist’ readings of texts depend very much on what the reader brings to them.

Now, my thought today is related, but a little different.

In the infamous Dobbs case (and its equally infamous draft, for which see here), Justice Alito argues from history. History, he says, does not show a long-standing right to abortion (or even, I suspect he would say, for women to control their own reproductive systems).

Which is entirely true.

And entirely irrelevant.

I’m going to assume the first, for reasons that should become apparent, and argue for the second. The reason it’s entirely true is that until the 20th Century (and perhaps even now) women were considered second-class citizens in most of the Western world, when they were considered citizens at all. We can document this, just as we can document slavery. So, we can safely assume that Alito’s contentios about history are, for the most part, likely to be true.

The reason they are entirely irrelevant is that in the late 20th Century, Western thought underwent a paradigm shift. We started to think of women as fully-formed and capable human beings. Not only could they take on jobs and work and earn on par with men, they could even have their own credit cards! They could sit on the Supreme Court! This was never before the case in the history of Western civilization. Which means that looking at what was happening four hundred years ago, two hundred years ago, or even sixty years ago, is entirely irrelevant to understanding how women live now.

Of course, this argument would be a great deal more easily made if the Equal Rights Amendment were to pass. That would officially recognize the paradigm shift in much the same way that the 13th Amendment recognized the paradigm shift that Western civilization no longer tolerated slavery (even though there is a recorded history of the toleration and embrace of slavery stretching back thousands of years). Nobody today would make an argument based on the notion that the history of the last 10,000 years demonstrates that there is no right to be free from slavery.

The historical arguments that Alito made in Dobbs are entirely correct, but also entirely obsolete. And I venture that one might make the same argument regarding the arguments made in other cases, like Heller. To refuse to recognize the importance of paradigm shifts is to be bound by the same sort of small-mindedness that occupies religious fundamentalists and biblical “literalists”. There, it may be a little more excusable (because, after all, one doesn’t want to fuck with god). Here, it’s not. We have no scripture, only the historical record of fallible (we could say sinful) humans. And there’s no reason not to fuck with them.

Justices of the Supreme Court of the United States (Justices Alito and Thomas, I’m looking at you), it’s time to smell the coffee. The intellectual world outside your doors has changed. Try to keep up.