Oh Hale Yes!

Justices Sotomayor and Kagan cite Sir Matthew Hale.

Last year, there was a bit of a stir when Justice Alito cited Sir Matthew Hale in the Dobbs draft, as ultimately in the published opinion. The well-known seventeenth century English judge sentenced two women to death for witchcraft. Therefore, everything the jurist wrote should be cancelled.

For those who still care about these things, Justice Sotomayor's dissent in Pugin v. Garland, which was joined by Justices Gorsuch and Kagan, also cites Hale. She cites Blackstone too. I'm sure he said some misogynistic things.

Although the Court quotes Blackstone's statement that " 'dis-suad[ing] a witness from giving evidence' " was an " 'impedimen[t] of jus-tice' " in support of its position, ante, at 8, Blackstone actually supports this dissent. The Court ignores that in historical usage "giving evidence" meant "testifying" at a proceeding. See, e.g., 3 W. Blackstone, Commentaries on the Laws of England 305 (1768) ("[E]very defence, which cannot be thus specially pleaded, may be given in evidence, upon the general issue at the trial"); 2 M. Hale, History of the Pleas of the Crown 280 (1736) ("If a reward be promised to a person for giving his evidence before he gives it, this, if proved, disables his testimony"). The majority also ignores that the Blackstone passage is discussing "[c]ontempts against the king's . . . courts of justice." 4 Blackstone, Commentaries, at 124 (1769). This context confirms Blackstone is referring to impeding a wit-ness from testifying at a proceeding, because otherwise it would not be a contempt against the king's courts.

Kagan had cited Hale in the past as well. Is there a problem? Hale no.

Last year ProPublica—yes that ProPublica—assailed Alito for quoting "infamous witch trial judge with long-discredited ideas on rape." I'm waiting for that venerable new organization to discover any Justice who was appointed by Presidents Obama or Biden.

Comments

[LavenderOlympia]

This seems like an intentionally uncharitable reading of ProPublica's work. They definitely criticise Alito's citation of Hale without mentioning Sotomayor's dissent in Pugin, but that dissent came out in October of '22, months after this article was published in May of '22.

Even giving Prof. Blackman a charitable interpretation, and assuming he's asking why libs don't call out the Pugin dissent for citing Hale like Dobbs, that question has an obvious answer: the libs aren't citing the infamous misogynist to support the idea that abortion is immoral. If you understand abortion as a potential issue of misogyny, citing a misogynist to support misogynist policy is obviously different than citing a misogynist for a historical understanding of the definition of "giving evidence".

[AmosArch]

You're inventing nuance where there was none. In the mainstream Twitter narrative Its wrong to cite Hale because he's evil. You aren't allowed to pick and choose among his works. And even if we accept your false history thats a pretty circular argument. Alito picked the wrong things to cite because its misogynist. Its misogynist because its wrong.

[Nige]

'In the mainstream Twitter narrative'

I see your problem.

[LavenderOlympia]

From the jump I'll clarify that I don't know what you mean by 'false history', but if I made any errors please note them so I can improve.

Regardless, I don't care about Twitter discourse, and I especially don't think it warrants serious discussion in the same breath as mainstream coverage of the Court. Additionally, Blackman wasn't responding to Twitter, but ProPublica. Why include the opinions of random non participants as if ProPublica is making those claims?

Additionally, I do not believe my argument is circular. Misogynist thinking is not simply labeled as such because it is perceived as bad, but because it is perceived as disfavoring women. In my view, an argument being bad is not evidence that it is misogynist, but an argument being misogynist is evidence that it's bad.

Maybe you're arguing against the idea that Alito favorably citing a misogynist on women's rights is evidence that his opinion is misogynist. While there's more room for discussion, this still is not circular logic. It's a very simple a to b - if b likes the bad stuff a does, b is bad. Unless you're arguing that misogyny isn't bad I just don't get what your point is.

[Michael P]

A dressed-up argumentum ad hominem is still an argumentum ad hominem. If you understand communism to be a potential issue of economic ignorance and abuse, should you refrain from citing any economic argument by a Marxist?

[LavenderOlympia]

It comes down to how you're citing them. If you say "even the Marxists agree with x, they just draw stupid conclusions based on their preconceived notions" it would make complete sense to cite a Marxist. Similarly, disfavorsbly citing a Marxists view on Marxism would make sense.

But if you understand Marxism as evil (or even as the lower standard of potential issue of evil that I raised originally), then favorably citing a Marxists writings on Marxism is a bad idea. This is because a Marxists view on Marxism would espouse Marxism - an ideology which we have taken as a given is evil. Favorably relaying an evil message is bad.

Sorry for saying Marxism so much.

[David Nieporent]

Abortion is not about misogyny, and Hale was not an "infamous misogynist."

[David Nieporent]

To be clear, I am not saying that Hale did not hold views that today would be considered misogynistic. I am saying that it is anachronistic to describe him as a misogynist based on holding views that the vast majority of people alive in his era would have also held. Virtually anyone one quoted from that time could've been described that way.

[Magister]

In fairness, most people of that time did not sentence anyone to death for witchcraft (and many might have gone along only out of fear that they would be accused themselves).

More relevant, Hale has been quoted in support of marital rape and treating women quite badly in general; given how much society has rejected those views, it seems poor practice to quote Hale on anything to do with women. But on the history of a common legal phrase, absent any massive societal change regarding what constitutes evidence or testimony, doesn't seem out of place, given that, as you observe, you couldn't find anyone in the 17th century with significantly better attitude toward women.

(Also, Hale qualified his assertion that abortion is murder with "if a woman be quick or great with child" which seems pretty compatible with Roe.)

[TwelveInchPianist]

"More relevant, Hale has been quoted in support of marital rape..."

I don't know if that counts as misogyny, given that at common law there were no protections for men attacked by women at all. It was perfectly legal for a wife to rape her husband, or any other man.

[Magister]

Treating every woman as less, even if it's less culpable, is misogyny; maybe any woman slutty enough to rape a man they would have considered a witch.

[grb]

David Nieporent : “Abortion is not about misogyny….”

Whenever I see/hear a substantial amount of anti-abortion viewpoints, inevitable people start to slip-up and say the quiet part out loud. They forget their script about the “sanctity of life” and start talking about the irresponsibility & effrontery of women – women who blithely think they can escape the consequences of their actions.

Once you accept that’s at the root of the anti-abortion movement, then so many things puzzling becomes clear. You see why almost no one in the movement cares about IVF clinics. They serve matrons trying to fulfill their womanly duty, not sluts trying to escape the wages of sin. You see why the movement tries to ban types of contraceptives that don’t even meet the movement definition of what abortion is. You see why there’s still strong movement support for saying a “baby” isn’t a baby in cases of rape and incest. You see why there’s almost no support for charging the pregnant woman, given “murder” is only murder to that limited degree necessary to let her know she can’t just “get away with it”.

Whether you see that as misogyny is up to you….

[TwelveInchPianist]

"They forget their script about the “sanctity of life” and start talking about the irresponsibility & effrontery of women – women who blithely think they can escape the consequences of their actions."

Nobody thinks irresponsible men should be able to choose to escape the consequences of their actions via abortion.

[LavenderOlympia]

Because abortion is something that happens to a pregnant person. Those who support abortion on bodily autonomy grounds obviously don't support the right of a father to force his child's mother to get an abortion any more than his right to force her not to do so.

I think you fundamentally don't understand why abortionists advocate for abortion, it isn't about giving those who have sired a child freedom from responsibility, but of a pregnant person's right to make choices about their body.

[BrotherMovesOn]

As they like to say here, "welcome newbie"!

[apedad]

Hang on a sec!

Mr. Bumble said we're not supposed to do 'whataboutism.'

[Dan Schiavetta]

Most of us understand that it's possible for someone to be correct about one thing and wrong about another.

It's not suspect to cite Thomas Aquinas for his ideas on the interplay between reason and faith. But when you argue that women are inferior to men and rely on his quote as to women being "defective and misbegotten", you are being selective and intellectually dishonest.

[AmosArch]

So Alito cited ‘the women are defective’ Hale quote in Dobbs?

[Dan Schiavetta]

Analogy alert!

[Doug Heffernan]

What is the appropriate sentence for witchcraft? Are there male witches, or do they go by another name?

[SRG]

Wizards or warlocks.

[Doug Heffernan]

So did Hale execute any of those guys?

[bernard11]

Don't expect Josh to let simple logic in the way of currying favor with whoever he's trying to curry favor with.

He's absurd.

[Doug Heffernan]

Being a hack can be hard work. Being a consistent hack is almost impossible.

[NYLawyer]

Have you identified a flaw in logic? Is a source cited by several different justices for the state of the common law in the 18th century incorrect because he was a misogynist?

[Ed Grinberg]

Last year, there was a bit of a stir when Justice Alito cited Sir Matthew Hale in the Dobbs draft, as ultimately in the published opinion. The well-known seventeenth century English judge sentenced two women to death for witchcraft. Therefore, everything the jurist wrote should be cancelled.
...
Last year ProPublica ... assailed Alito for quoting "infamous witch trial judge with long-discredited ideas on rape."

compare:
https://www.cnn.com/2021/10/19/us/thomas-jefferson-statue-new-york-city/index.html
https://bariweiss.substack.com/p/what-we-lose-when-we-lose-thomas

[LavenderOlympia]

That Weiss piece is terrible, she motte-and-baileys from "Libs want to cancel Jefferson for being a rapist and slaver" to libs saying "everyone implicated in slavery is ipso facto ineligible for public celebration". But Jefferson wasn't just implicated in slavery, he was an avid defender and practitioner of white supremacy. He personally owned hundreds of chattel slaves, and raped them. His acceptance of slavery allowed enslavement to be codified into the US Constitution. He wasn't just peripherally implicated in slavery, he was a central figure in the development of so much of American society, yet for some reason he stops being a founder when he's talking about enslavement.

[Bored Lawyer]

The apologists here are, as usual, full of it. Here is the quote from Dobbs, in full:

The “eminent common-law authorities (Blackstone, Coke, Hale, and the like),” Kahler v. Kansas, 589 U. S. ___, ___ (2020) (slip op., at 7), all describe abortion after quickening as criminal. Henry de Bracton’s 13th-century treatise explained that if a person has “struck a pregnant woman, or has given her poison, whereby he has caused abortion, if the foetus be already formed and animated, and particularly if it be animated, he commits homicide.” 2 De
Legibus et Consuetudinibus Angliae 279 (T. Twiss ed.
1879); see also 1 Fleta, c. 23, reprinted in 72 Selden Soc. 60–
61 (H. Richardson & G. Sayles eds. 1955) (13th-century
treatise).25
Sir Edward Coke’s 17th-century treatise likewise asserted that abortion of a quick child was “murder” if the “childe be born alive” and a “great misprision” if the “childe dieth in her body.” 3 Institutes of the Laws of England 50–51 (1644). (“Misprision” referred to “some heynous offence under the degree of felony.” Id., at 139.) Two treatises by Sir Matthew Hale likewise described abortion of a quick child who died in the womb as a “great crime” and a “great misprision.” Pleas of the Crown 53 (P. Glazebrook ed.
1972); 1 History of the Pleas of the Crown 433 (1736) (Hale).
And writing near the time of the adoption of our Constitution, William Blackstone explained that abortion of a “quick” child was “by the ancient law homicide or manslaughter” (citing Bracton), and at least a very “heinous misdemeanor” (citing Coke). 1 Commentaries on the Laws of England 129–130 (7th ed. 1775) (Blackstone).

Nowhere was Hale cited to show that women are inferior. He was one of four classic common-law authorities, all of which labelled abortion after quickening as homicide. The point is not Hale's opinion, but it reflects a consensus that at English common law, abortion after a certain point is criminal homicide. Which makes it very difficult to find a Constitutional right to commit a common law crime.

Hale's views on witchcraft have nothing to do with the point, and it is slimy journalism to claim otherwise.

[Voize]

He was one of four classic common-law authorities, all of which labelled abortion after quickening as homicide.

Actually Hale wrote it was a great crime, but not a homicide. You can read it here.

[Dilan Esper]

I didn't think it was some terrible outrage that Alito cited Hale. In general, American jurisprudence would probably benefit from less worship of 300 year old sources, but that's a battle I am not going to win and Hale obviously wrote a lot of informative stuff about British jurisprudence at the time.

So I also don't think it's an outrage that the liberals cited Hale either.

[Brancron]

I dislike Josh Blackman as much as the next respectable reader of the Volokh Conspiracy; but I have to say, I'm digging the title of this post.

[Michael P]

Wikipedia’s page on Matthew Hale is awful. It says:

Modern scholars also offer criticism of Hale for his execution of at least two women for witchcraft in the Bury St Edmunds witch trials and his belief that capital punishment should extend to those as young as fourteen.[5]

Link 5 goes to a Google Books copy of an 1856 book. It obviously doesn’t support the idea that modern scholars have criticized Hale (about anything), smells suspiciously of original research, and isn’t accurate: that section of the 1856 book merely summarizes some of Haley’s writing, and says:

Sir M. Hale’s only observations upon these statutes should be noticed, viz. “I have not known these statutes much put in execution, only about twenty years since, at the Assizes at Bury, about thirteen were condemned and executed for this offense.”

Emphasis in the original. One should notice that Hale merely described the law and the only case he knew it applied, and his description has at most neutral valence. It doesn’t convey that “capital punishment should extend to those as young as fourteen”, or even the ages of those executed in that case.

But Wikipedia being ignorant and dishonest in the style of the Year Zero crowd is utterly unsurprising.

[The Turtle Dove]

Court's into Hale, then.

Mr. D.

[NYLawyer]

All decisions mentioned in the post quoted Hale for the same purpose -- the state of the common law. Same reason for quoting Blackstone or Coke.

[TwelveInchPianist]

Do you not see how quoting Taney or Hale to show what the law was in their respective times is different than quoting them for persuasive moral authority on the subject of black people or women?

[TwelveInchPianist]

The idea is that unenumerated rights have to be supported by the history and tradition of the US, and Hale and others are cited to show that abortion was not. Enumerated rights have different criteria.

[LavenderOlympia]

Alito isn’t just saying that was the state of 17th century English law, he’s saying that an especially biased contemporary source’s view of that state of law is controlling or convincing. This reveals that Alito does in fact view Hale as a persuasive authority of on the subject of women’s rights. You might discount this for not showing ‘moral authority’, but I don’t think morals have much to do with judges respecting women’s rights as they are bound to do so.

More generally, I think it’s clear that no 17th century common law surrounding women’s rights should be persuasive at all. They simply did not view women in a light remotely equivalent to men, and this was encoded into their law. Modern American law requires that the rights of all sexes (both sexes if you want to be PC) be protected equally, so a form of law which did favored one sex over the other is just not relevant. But I’m getting into the weeds, so I’ll stop here.

[TwelveInchPianist]

Yup. And the people who discuss women’s irresponsibility in the context of abortion aren’t doing it because they believe that women are particularly irresponsible, but because men’s irresponsibility isn’t implicated by abortion.

[LavenderOlympia]

This feels like a non sequitur. I don't know what part of my argument you're trying to argue against. Are you comparing the misogynist implication Alito's favorable citation of Hale to the idea that proponents of legal abortion are subtly implying they think women are less responsible then men, because only women are allowed to stop a pregnancy?

If so, that's ridiculous. The obvious difference is that for a man to decide for an abortion to happen, the pregnant woman would be forced to undergo that abortion. Pregnant people deserve exclusive say in what happens to their pregnancy.

But let's put that aside. What if incubation was not a matter of bodily autonomy, and a zygote could be brought to term in a machine? Simple: if a fetus is developed enough forbid termination, but allow parents to totally give up any responsibility for the child at any time.

Then again I may have no fucking clue what you're saying, so feel free to correct me.