Supreme Court – JT McKenna Writes

Some of my best thinking happens while I’m enjoying my morning coffee and reading something from Smithsonian magazine. This morning’s read included an archeological piece on the workers who constructed Stonehenge 4500 years ago; in particular, it was about their poop (and their dogs’ poop, too). But, as fascinating as the short article was (one that I just had to share with my daughter in Portland, whose scientific curiosity is as distinctive as mine or — alternatively — whose filial sense of responsibility demands that she indulge me), it was the second article that I read that struck a more emotional chord. And, frankly, the current topic is nothing if not fraught (with its political overtones), and one likely to provoke an emotional maelstrom. . . if one reflects too intensely on the “historical moment” in which we currently find ourselves.

I invite you to imagine this scene: a husband and wife are in a passionate embrace in their bedroom when they hear rustling outside their second story window. Peering at them as they’re involved in “the act” is a furious-looking man whose enormous bald pate catches the reflection of the full moon filtering through the trees. He has held his tongue until he is sure that the couple have committed an illegal act. The illegal act? The husband has slipped on an industrial-grade condom (not the micro-thin, lubricated and scented “rubber” that wouldn’t become available for a looong time after). The man outside the window — as a “special agent” for the United States Post Office Department — leaps from his perch on one of the tree’s limbs through the open window and shouts, “You’re both under arrest for violating Connecticut’s obscenity laws.”

Sound ridiculous? Anthony Comstock was a pretty ridiculous man of the 19th century who was nevertheless instrumental in the passage of one of our country’s most restrictive federal laws concerning civil liberties and the right to personal privacy. Moreover, he was granted an insane degree of power to police it. So, the image presented in the paragraph above is indeed far-fetched, but Connecticut’s 1879 version — one of the many “little Comstock laws” that were implemented by states subsequent to the 1873 federal anti-obscenity law — illustrates what could happen. You could be a married couple who utilizes any manner of contraceptive, and — if found guilty — be subject to a fine, imprisonment, or both. Even coitus interruptus — always an option treated with natural skepticism by the woman — and the rhythm method (the Catholic Church’s favorite recommendation that compliant mothers of large broods likewise — long after the fact — viewed with mistrust) were outlawed. Nearly one hundred years would pass before the Comstock Law would be successfully challenged.

Whether you see yourself as someone who will be affected by the U.S. Supreme Court’s decision yesterday to overturn Roe v. Wade, there’s a gnawing sense that our society — already dangerously frayed — will be re-shaped by the Court’s unwillingness to preserve the most private of privacy rights of our citizens. Excuse me, . . . our female citizens. And whether you stand on the side of the majority of our citizens who wish to preserve the rights guaranteed in Roe v. Wade, or you’re instead guided by a belief system that sanctifies the rights of a fetus (or maybe even an embryo), you’ll no doubt appreciate the magnitude of this issue. It’s quite illuminating to note at this juncture that the first half of the 19th century — and even through much of the 18th century, as well — women enjoyed much more freedom (at least legally) to exercise control over their own bodies. How, then, did it all get upended? Who determined that a woman — any woman — was incapable of making her own decisions where it concerns her own body, her own health, her own needs?

To form an idea as to how our society veered onto a more noxious path, you can take a look at the disproportionate number of patent medicine ads in newspapers of the late 19th century targeting women, who were seen as constitutionally weak and nervous, whose very womanhood was viewed as pathological. It truly must have been a bewildering time for women. At the same time that they were beginning to flex their muscles in the work arena (outside the home) and to insist on being included in political discourse, they were being assaulted with messages of their inadequacy, their inferiority. Clearly, gaslighting is not a new phenomenon!

It is interesting to note that running parallel to the rise in feminist activism and advocacy was a contemporaneous (and insidious) trend that over time proved ruinous in terms of women’s constitutional protections. What began as a shift in perception evolved into a potent mechanism to wield control. You see, women had little agency until some time around the Civil War — in other words, they posed no threat to the establishment while they performed their wifely duties in the home.

As our country became more urbanized and people adapted to industrialized life, the social and business interactions that they engaged in became less intimate and less defined. . . and a whole lot less principled. The foods that people ate and the medicines they took were no longer ones that they grew or concocted. By the turn of the century, abuses were happening throughout the food and drug supply network and everyone seemed to recognize that some type of oversight was needed. When you set up a regulatory program (such as, for example, the Food and Drug Administration), you rely on experts. The mandates inherent in the Pure Food and Drug Act of 1906 were just one instance in which the opinions of the male-dominated medical establishment were deemed unassailable.

So, while women made visible gains during this time in some ways — the vote in 1920, for example — they lost immeasurably in other, more subtle but distressing ways. Their greatest surrender, in my mind, was conceding control over their own bodies to men of medicine and men who cited men of medicine. . . and even men who purported to be men of medicine. As if the matter were one of choice. It was a time of great opportunism, and a great time to be a man, especially a self-righteous, moralistic white man whose puritan (and puritanical) lineage dated back several generations

I’ve always been intrigued by 19th century American history. Admittedly, it’s probably because the invention of photography has made it easy to study intently the figures of the era. Bustled, corseted women standing stiffly next to an even more stiffly arranged Victorian settee are an invitation to reach for my magnifying glass. Even if I have no idea who the subject might be, I’m still very curious about what her life may have been like. Did she hate turnip as much as I do? What kinds of arguments did she have with her parents? Did she like to dance? And if I knew who she was, my questions could be endless.

When I study the portrait of Anthony Comstock, I’m curious about his life, too. He was part of that era when important men tugged on their mutton chops, puffed up their chests with self-importance and passed sweeping and important legislation that would leave future generations wondering what perception-altering drugs they favored when they were looking for professional inspiration and (of course) further opportunities for self-importance, further reason to puff up their chests.

It’s important to examine the broad historical context for clues — it allows for a more meaningful understanding of how we’ve arrived at this moment, one that keenly feels like a worrisome return to an earlier time characterized by huge social inequalities. Only by doing so can we fully acknowledge what’s on the line.

The 1973 Roe v. Wade decision has always been seen as a watershed moment in our country’s long journey to wrest from the federal government control over women’s bodies. For nearly one hundred years, petitioners had been agitating to de-fang a federal law that was forcefully promoted by Anthony Comstock, a tyrannical, mutton-chopped Connecticut yankee whose puritanical upbringing caused in him some pretty inflexible ideas about acceptable behavior among his brethren. . . especially if we include women in that cohort.

Anthony Comstock was born in New Canaan, Connecticut in 1844, either the fourth child of eight or the fourth child of thirteen if you include his five youngest half-siblings. The son of a successful farmer, he was able to directly trace his American ancestry back six generations to the founding of Wethersfield, Connecticut. By Anthony’s time, the family had established a legacy based comfortably on agriculture and civic-mindedness. In William Comstock’s case — William was Anthony’s 4x great-grandfather — such civic responsibilities involved protecting family and community by hefting a musket at critical moments, such as during the Pequot Wars (1636-1637) when he joined his fellow puritan comrades and Mohegan allies in a massacre of 500 Pequot men, women, and children. Such was the sense of duty among Comstock men in their readiness to answer the call that each successive generation either signed up in eagerness to defend their turf (and God-given rights) and/or apply for proud membership in the Sons of the American Revolution.

In trying to make sense of Anthony’s extreme views about decorum that fueled his later crusade, an examination of his formative years goes a long way in explaining his skewed outlook on humankind. He had just turned ten (in 1854) when his mother died in childbirth. Simply put, his orderly and predictable world pitchpoled. With eight children and two servants, Anthony’s father Thomas (for a while) continued to toil and till — rather listlessly — on his farm in New Canaan; soon, however, Anthony’s two oldest brothers began to assume more responsibility for the farm’s management.

And then the Civil War happened.

And then Thomas laid down his pitchfork for good and removed to London. . . where he married a girl (younger than half of his children). Thomas would begin a new family with his second wife off in England, eventually running into financial difficulties. After crossing the Atlantic a few times, he transferred his new brood to Brooklyn, New York, where he would take up residence a mile away from his by then high-profile and very outspoken son Anthony.

Meanwhile, and before striking out for New York City himself, Anthony continued to struggle as he tried to restore order and sense in his world, but heartbreak pursued him. His older brother Samuel died (at age 21) in a Gettysburg hospital after wounds suffered in that battle. (His name appears in a long list of soldiers who succumbed in the months following the Battle of Gettysburg; interestingly, a high percentage of them were casualties of chronic diarrhea — typhoid fever, consumption, and dysentery also being frequently cited as cause of death. ) No doubt devastated by the loss of his brother, Anthony was moved to likewise answer the call, thus joining the Union cause three months later. He was nineteen. His experience as a private in the infantry exposed him for the first time to the rude realities of locker-room behavior among men. He was shocked and appalled. It would not be unreasonable to suppose that his resultant crusade against obscenity and all forms of immorality — one that lasted throughout the rest of his life — had its origins in that episode and was informed by the strict moral code that had been instilled in him by his late mother.

After mustering out and with his eyes now wide open, Anthony descended on the roiling hotbed of indecent behavior — New York City. For a while he held an academic position, but his growing indignation over what he saw as positive proof that American society (being systematically diluted and debased by the rising immigrant population) was slithering its way toward a vile and vulgar morass of immorality led him to advocate with every fiber of his being for the passage (in 1873) of the federal Act for the Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use.

The implications of this 1873 law, soon dubbed The Comstock Act (or Law), were far-reaching, opening the door for states to draft their own stringent laws that, in many cases, underscored the differences between the haves and the have-nots. People of the upper and middle classes continued — largely unhindered — to avail themselves of outlawed products, but the working class encountered all manner of difficulty in their attempts to access the same. Once Anthony was installed as “special agent” for the United States Postal Service, he was uniquely positioned to observe how New Yorkers exchanged information; some of that information made him quake with disgust and anger. With his new unfettered powers — he could open mail, arrest suspected perpetrators, even entrap people — Anthony Comstock was delirious with his own sense of importance and authority. And he was unstoppable.

And he was easy to spot a mile away. He was a short block of a man with a shiny bald head and ginger-colored sideburns that sprang audaciously from the sides of his face. Purposeful in his stride, his forward motion was, nevertheless, hindered and made comical by his habit of walking on the balls of his (tiny) feet. Often caricatured because of his physique and behaviors, as well as his idiosyncratic opinions, whenever he turned his glowering attentions on potential victims, the intensity of his gaze alone could make them tremble in fear.

It’s worthwhile to take pause at this juncture in order to contemplate the very real — as well as the emotional — fallout from this one man’s crusade. The law made birth control illegal. Let’s just start there. And abortion was seen by Anthony as the most egregious violation of the law; recalling how his saintly mother died giving birth to her eighth child, it must have been abhorrent to him that women (even those who were married) would entertain the thought of rejecting a pregnancy. They should be willing to die in service to their primary (procreative) purpose, must have been his thinking.

Moreover, it may have been one thing to arrest people who were peddling “obscene” literature — notwithstanding the subjective (and highly variable) nature of the word’s definition, but Anthony always seemed to veer into the extreme. He once was offended by an undressed mannequin in a San Francisco store display window and brought charges, (which of course were later dismissed in court.) Equally absurd was the controversy over an oil painting. Google “September Morn” — not Neil Diamond’s song, but the oil painting by Paul Chabas. Even if you don’t look it up, let me sum for you: it’s a naked young woman standing in the shallows and striking a modest pose. Her nakedness was displayed in a NYC shop window, causing our crusader to storm angrily into the shop and demand that it be removed at once. Anthony was often impulsive and quite the hothead, not averse to getting physical or threatening . As the painting had already withstood legal scrutiny earlier in Chicago, our friend Anthony knew that the painting — and the reproductions — had standing, and the most that he could do was cast his opinion publicly, declaring it “demoralizing in the extreme and especially calculated to excite immodesty in the young.”) (Wikipedia)

If there was any “exciting” going on, it was the controversy that clung to Anthony Comstock in every encounter that resulted in him zealously exercising his powers of arrest or through his efforts to otherwise publicly condemn the shameful behaviors of his contemporaries. Occasionally, there were campaigns to overturn the Comstock Law, but at least while Anthony was alive, he enjoyed the backing of some very influential businessmen‚ most notably J.P. Morgan and Samuel Colgate. As always, Congress aimed to keep the captains of industry happy. And it must be said that many U.S. citizens, too, were pleased that they could rely on the indefatigable work of this uncompromising crusader against smut. Nothing would change until 1965.

Griswold v. Connecticut, a case being closely parsed of late, has been considered — from the outset — to be one of the most influential precedent-setting decisions where it concerns right to privacy. Pursued all the way to the Supreme Court, the plaintiff Estelle Griswold, who was executive director of Planned Parenthood, (through her lawyer, Yale lawyer Thomas Emerson) successfully argued in 1965 that Connecticut’s law banning the use of and/or dispensation of contraceptives violated a fundamental implied constitutional right. Eight years later, the success of Roe v Wade would depend on a broadening of the marital privacy rights that were articulated in Griswold v. Connecticut. A woman’s (and her doctor’s) right to privacy and freedom from governmental intrusion was re-interpreted to include abortions. In Justice Thomas’ concurring opinion yesterday, he alludes to future reconsideration of — among other cases — the due process protections that were decided in Griswold v. Connecticut.

As I’ve noted, it’s important to recognize what’s on the line. It feels terribly wrong that a body of nine — not a single one of whom has the biological capacity to become pregnant, either because of gender or age — exercised their power to nullify the constitutional right to an abortion, which, let’s just acknowledge it right now, disproportionately affects black and brown women. It should also be very unsettling that Justice Thomas is essentially welcoming other cases that will further subvert the rights of under-represented cohorts — same sex couples, for example. We’re wholely unaccustomed to court decisions that so ravage constitutional protections, but it does have familiar historical echoes. Our society can’t seem to escape its tradition of suppressing rights that should be enjoyed by all constituencies (while simultaneously broadening rights that imperil our most vulnerable, as also happened this week by means of the Supreme Court’s decision in New York State Rifle & Pistol Association Inc. vs. Bruen.) Over and over we find ways to preserve the status quo, by which I mean the perceived threat to the rights of privileged white men. Anthony Comstock — whose extreme beliefs were cultivated from the cradle and indulged for nearly his entire adult life — caused irreparable harm to our less fortunate, disenfranchised citizens. Our shameful past — we can never seem to shed it, and yesterday’s ruling simply magnifies the recurring hurt.

Works Consulted:

Tag: Supreme Court

Anthony Comstock’s Permanent Harm to Women’s Rights — It Goes Back to the 1800’s

Gun Owners are Pretty Happy with the U.S. Supreme Court This Week