Sen. Mazie Hirono: 'Who the Heck Would Know What Our Founding Fathers Meant?'

( – At a hearing of the Senate Judiciary Committee on Tuesday, Sen. Mazie Hirono, a Hawaii Democrat, said women, not “a bunch of politicians,” should make decisions about abortion.

Turning to a witness who agreed with her, Hirono criticized conservative Supreme Court justices for “pretend(ing) to know what our Founding Fathers meant when they drafted the Constitution.” She was referring to the recent ruling overturning Roe v. Wade and sending abortion decisions back to the states.

“Professor Bridges,” Hirono said — addressing a Berkeley Law School professor.

“You noted that Justice Alito chose 1868 as the historical basis for his decision overturning Roe. And I agree with you, what is so special about 1868?

“And not only that, with the attitude or approach of originalism, the justices who take that approach go all the way back to our Founding Fathers and pretend that they know what our Founding Fathers meant when they drafted the Constitution.

“I use the word pretend because who the heck would know what our Founding Fathers meants? Is there any reference to AR 15 rifles in our Constitution? No.”

Sen. Tom Cotton (R-Ark.) later on Tuesday told Fox News’s Laura Ingraham that the Founders’ views are very well known:

“Gosh, how could you possibly understand, Laura, what our Founding Fathers thought the Constitution and the Declaration meant? Maybe it’s that James Madison and Alexander Hamilton wrote 85 different newspaper columns, now collected in something called the Federalist Papers, or that Madison and Jefferson and Adams and Washington wrote lettters and speeches and ordinances and resolutions that total up volumes and volumes of what they believed about America and the promise that America held for everyone.

“That’s exactly what justices should be doing. And that should also be what guides us in Congress, what guides our legislatures across the country, is fulfilling those founding ideals. Not simply dismissing them as if they’re somehow unknowable, when the Founders literally wrote multi-volume books about what the Constitution means.”

The majority Supreme Court opinion that overturned Roe v. Wade, sending abortion decisions back to the states, included an examination of “whether the right to obtain an abortion is rooted in the Nation’s history and tradition and whether it is an essential component of ‘ordered liberty.'”


As Justice Alito wrote: “The Court finds that the right to abortion is not deeply rooted in the Nation’s history and tradition…Guided by the history and tradition that map the essential components of the Nation’s concept of ordered liberty, the Court finds the Fourteenth Amendment clearly does not protect the right to an abortion.

“Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion,” Alito wrote.

“No state constitutional provision had recognized such a right. Until a few years before Roe, no federal or state court had recognized such a right. Nor had any scholarly treatise.

“Indeed, abortion had long been a crime in every single State. At common law, abortion was criminal in at least some stages of pregnancy and was regarded as unlawful and could have very serious consequences at all stages. American law followed the common law until a wave of statutory restrictions in the 1800s expanded criminal liability for abortions.

“By the time the Fourteenth Amendment was adopted [in 1868], three-quarters of the States had made abortion a crime at any stage of pregnancy. This consensus endured until the day Roe was decided. Roe either ignored or misstated this history, and Casey declined to reconsider Roe’s faulty historical analysis.”


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