Justice Alito's invocation of Sir Matthew Hale in his leaked majority opinion is so, so much more fucked up than people realize. I'm a professor with a PhD, and my area of expertise happens to be women and gender in the early modern era (1500-1700). Here is what you need to know.

Sir Matthew Hale was a huge advocate for marital rape. Like many early modern men, he believed that women's bodies belonged to men, first their father when they were born and then their husband when they were married. WOMEN WERE NOT SEEN AS AUTONOMOUS BEINGS.

Early modern law was based on a combination of roman law, common law, and biblical law. There wasn't a separation of church and state. The 1632 manual The Lawes Resolutions of Women's Rights, for instance, cited the Bible as the basis of a lot of laws pertaining to women.

Hale, just like a lot of Christian extremists today, believed that women were made from Adam's rib. God did not make her as an autonomous being with rights. She was a physical extension of his body, made to be his "helpmeet," namely to exist to help him to whatever he wants.

The writings of the apostle Paul were also used as a basis of law during Hale's life. The man was "the head of the woman" and it was inarguable to suggest otherwise. Many Christian sects still quote this passage as a basis for patriarchal rule in the home and in the church.

Hale therefore wrote in his posthumously published book Historia Placitorum Coronæ (1713) that marital rape was totally legal. In fact, because a man owned a woman's body as it was an extension of his own to do with whatever he willed, he was incapable of marital rape.

The logic was that you can't rape something that isn't considered an independent human being. Your wife's body is yours and you can't rape yourself. This is the logic Alito is upholding when he invokes Hale. But it gets worse.

Let's say a woman vocalized her opinion and it ran contrary to her husband's. She didn't want sex. Hale believed that this put her in violation of her marital vows. She was literally breaking the law. Women who denied men sex needed to be punished.

There was a whole set of laws at the time specifically on the punishment of women who spoke up against the men in their lives. They didn't have the legal authority to say no to sex because they were not legally independent human beings.

Beating your wife was not only permissible by law but also encouraged as a corrective tool. Hale, like many other legal writers of his day, subscribed to the "rule of thumb" - namely, you could beat your wife with an object was not thicker than a man's thumb.

Men were encouraged in law manuals, however, to beat their wives in a reflective manner, understanding that it was necessary for the salvation of their wife's soul and done out of love rather than anger. It was advised to never beat a woman in rage.

Court records, however, were filled with incidents of extreme physical violence against women by their husbands so this advice was rarely followed. Women who were beaten nearly to death rarely saw justice. The courts almost always sided with the husband. He was doing his job.

Keep in mind that Hale and others also viewed a father's role in a similar way. The daughter had no bodily autonomy, & it was a father's duty to "correct" his children as long as he did so within the law. Daughters were groomed from an early age to be obedient to future husbands.

It should be no surprise that Hale was responsible for the trial and execution of women for witchcraft and that his legal opinion would be used as a base for the execution of women and children by the state both in England and the Americas.

The big witch trial Hale was known for was the 1662 trial of Rose Cullender and Amy Duny. It followed many of the trial conventions of the day with bonkers stories of toads, vomiting pins, etc. Both women were widows and found guilty.

http://reader.library.cornell.edu/docviewer/digital?id=witchcraft097#page/61/mode/1up

Women who were executed by the state for witchcraft were overwhelmingly poor and single. Most were widows. Hale & his contemporaries found independent women to be a serious threat in society. She was not owned by father or husband, which meant that she was an unnatural presence.

Women without a man to tightly control their behaviors were viewed ad extremely susceptible to immorality and becoming a Satanic force in the community. Hale believed it was in society's best interest for men of the state to step in and control these women.

During this time, women could be declared legally independent, such as when a woman without a father became old enough to be freed from being another man's ward. However, these legal declarations of independence were uncommon, and the assumption is that it would be temporary.

A woman's primary purpose in adulthood was to be married, be obedient to a man, & to have children. Alito invoking Hale in his opinion made it clear that he also thinks this too. It's his duty as a man to put the bodily fate of women in the hands of states run by white men.

Keep in mind that Hale was only talking about white Christian women. Women who didn't fall into this category were debated as even being women. They were viewed as less than human with even less rights. The rule of thumb didn't apply; they weren't worthy of such restraint.

Are you starting to see why Alito's invocation of Hale is so deeply, deeply fucked up on so many insane levels that there isn't a way to possibly overreact to how shitty his legal standing is here? Rage, horror, disgust, etc. are not deep enough reactions to his legal opinion.

And if you think Hale being invoked by Alito was something out of left field, think again. Hale is all over our legal system. The easiest application to find was the Salem Witch Trials, but his influence on our laws is much more insidious than that.

Marital rape was not completely outlawed in the United States until 1993. Let that sink in. Hale's Historia was being invoked in our American legal system all the way up until that point to justify rape by a husband. Alito is well aware of Hale's lasting influence in our laws.

So when he talks about going back to what the founding fathers meant, he is talking about all of this shit. Women's bodies being legally owned and controlled by men. He knows many Christian white women are groomed theologically to agree and will vote for this patriarchal control.

Alito knows that by kicking reproductive control back to the states that he is putting an incredible amount of power in the hands of the men who control these communities. He knows that white men are disproportionately in charge of these places.

Alito knows how much power and influence local churches have on local leadership. He knows most of these institutions are controlled by men. He is counting on it. He knows the biggest threat to women are the men in their homes and communities.

Justice Alito and men like him do not see women as independent human beings with their own human rights. They see us as incapable of making our own decisions. They consider men to be divinely appointed to rule over women. This is not an exaggeration.

If they think of white Christian women this way, imagine what they think about women of color, women of non-Christian groups, or trans women and men. The utter disdain towards them is deep, disturbing, incomprehensible, and violent.

Collectively we need to condemn Alito's opinion and understand it for what it is: a deeply flawed rant by a misogynist zealot who puts his own sexist beliefs before his duty as a Supreme Court justice and the welfare of the American people.

PS - If you want to look up Sir Matthew Hale on Wikipedia, take that article with a grain of salt. Some Hale apologists have added some deeply biased wording and minimized his legal standing on women. If you want to know about him, look up what the experts are saying.

This thread is taking off so I am going to mute it. I'm leaving you with some books that talk about what Hale & folks like him thought about women legally & theologically (& legal punishments). The further you go down this rabbit hole, the worse Alito's invocation of Hale gets.

Footnote cuz Twitter:

This thread is not etymological.

Don't conflate the phrase "rule of thumb" in English use today with what I was referencing in early modern discourse. The thumb was used to measure all sorts of things back then, including the size of beating sticks.

Another footnote: Hale & friends didn't consider a fetus a human being, & if a woman aborts it, she is NOT guilty of murder or manslaughter. A fetus wasn't a baby until it was fully delivered. Alito was cherry picking from legal texts. It was such poorly executed jurisprudence!