The past is not a dream. Its a living nightmare.
Alito cited a 17th century witch-hunter in the draft opinion overturning Roe, showing us that the past is not a dream, it’s a living nightmare. Ralf Nau/gettyimages.com

I believe in ghosts because the past is never anywhere but in the present. This understanding makes perfect sense when one considers an important dimension of the 98-page draft of the Supreme Court's majority opinion to overturn Roe v. Wade. It was leaked at the end of the day on May 2. It turned me into a ghost in my house, because I could not sleep. I kept twisting and turning, going in and out of the bed, walking up and down the stairs. There was no place of rest to be found in this self-haunted Columbia City home.

There was, however, another ghost that evening. This one coursed through the leaked text by ultra-right-wing Justice Samuel Alito. He has, it turns out, always been with us. However, many didn't recognize him because they, like I, had never heard of him. He was buried in the vast expanse of history, which in our faulty sense of time is presented much like the open back of a pickup truck, when in reality it's always up and locked with the present.

Alito's text disinterred this dead man, and, in the blink of an eye, we saw he was never anywhere else but here among us. His name is Sir Matthew Hale—a 17th century English jurist, scholar, and witch hunter/killer. He was long dead by the time the United States won its independence from the United Kingdom.

Vanity Fair:

Yes, Alito literally quoted this guy, who was born in 1609, as a defense for ending Roe v. Wade in 2022. 'Two treatises by Sir Matthew Hale,' Alito enthusiastically writes, 'described abortion of a quick child who died in the womb as a "great crime" and a "great misprision"... As Jezebel notes, [Hale's] The History of the Pleas of the Crown 'is a text that defended and laid the foundation for the marital rape exemption across the world' and reads: “For the husband cannot be guilty of a rape committed by himself upon his lawful wife for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband which she cannot retract.” Again, Alito used the arguments of this man to bolster his case.

One of the most adequate ways to describe Sir Matthew Hale in a modern expression is: "What a negative creep." And the general feeling of those who woke up on Tuesday to find his appearance in tweets, on TV, and in the press was one of astonishment. How can someone from so far in the past have so much influence on the wombs of our times and on the mind of a key political figure of a nominally secular society? Why isn't this Hale character as irrelevant as, say, Edward Hyde, 1st Earl of Clarendon? Both were born the same year, 1606. Why have the dead failed to bury their dead?


But this is the wrong attitude or perspective on the present state of affairs. Indeed, we do need to add questions about prosecuting witchcraft at Supreme Court confirmations not only because of Alito's draft but, more importantly, because the victims of his inspiration are still very much with us. (Hale sentenced Amy Duny and Rose Callender to death for witchcraft.) They and all of the women burned at the stake have not gone away. They, indeed, can't go away. This is the core of a mode of philosophical theorizing called hauntology (as opposed to ontology, which privileges presence). There's nowhere else to be or not to be but in this one and only time. Even when committed to oblivion, erased by social amnesia, the witches, that creep of a jurist, the flames, the whips, the slave ships, the black slaves, their white owners—all and much more are right here in the only thing that can ever happen, the now, which the the philosopher and physicist Karan Barad describes as "thick."

This is the understanding we find in one of the greatest novels of the 20th Century, Octavia E. Butler's Kindred, which was published in 1979. The past is never really in the past as it's often pictured. Nor is it passive. For Butler, events that are no longer physically present are, no matter how remote, still active and very physical. Whenever Dana, the subject of Kindred, is mysteriously transported from 1976's Los Angeles to 1815's Maryland, a place and time where her black skin automatically makes her a slave, she is there physically. If Dana is beaten by a slave master, she returns to her own time and place with bruises and cuts. In one trip back to the plantation world, she takes over-the-counter painkillers with her. The past is not, for her, a dream from which, no matter how brutal, one can awake unscathed. What happened continues to happen in the ever-thickening present. This is how we should see Duny and Callender and Sir Hale and Justice Alito—all are not outside but very much a part of this time.

At this point we need to turn to Jamie Wheeler's delayed-choice Gedankenexperiment. It's not easy to explain in a post of this kind, but it basically extends the famous double-slit experiment that revolutionized physics in the 1920s to this strange conclusion: In the quantum realm, particles can change their past. Meaning, the past is not as fixed or finished as it appears to be. Physicists at the turn of the millennium confirmed this strange effect in an experiment described as the "quantum eraser." But Karen Barad has argued, again and again, that the idea of erasing the past by changing it from the position of the present is wrong. What the verification of Wheeler's delayed-choice thought experiment revealed is that the past is present by a kind of entanglement we find in Octavia Butler's Kindred.

From Barad's essay "Troubling time/s and ecologies of nothingness: re-turning, re-membering, and facing the incalculable":

For one thing, something not remarked upon by the experimenters is that what this experiment tells us is not simply that a given particle will have done something different in the past but that the very nature of its being, its ontology, in the past remains open to future reworkings....

With Kindred, the past and the present are hauntologically entangled (Albert Einstein's dreaded “spooky action at a distance”). The Maryland slavery plantation is here and now. So is Sir Matthew Hale.