Throughout Alito’s opinion, there is a steady drumbeat of the appeal to “our Nation’s history and tradition.” The spirit of Russell Kirk rises from the grave in the appeal to Magna Carta, 700 years of the Anglo-American common law tradition, Henry of Bracton, Sir Edward Coke, Sir Matthew Hale, and Blackstone’s Commentaries, and 35 of the 37 state constitutions in effect at the time of the ratification of the 14th Amendment.
Similarly, Russell Kirk’s classic Roots of American Order (1974) made the case for thoroughly grounding our understanding of American civilization in the older and more-venerable Western civilization — the extraordinary intellectual, cultural, spiritual, and political heritage of the Judeo-Christian, Greco-Roman world. American history and tradition rests on the pillars of five cities, according to Kirk: Jerusalem, Athens, Rome, London, and Philadelphia.
“The laws of Nature and of Nature’s God” did not spring from the ingenious pen of Thomas Jefferson but flowed from a natural law tradition inkpot that was 4,000 years old. Jefferson’s forebears were moderns Locke and Sidney, but also ancients Aristotle and Cicero. A man as “illiterate” and uneducated as George Washington had a copy of Cicero’s On Duties in his library.
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