SCOTUS Justices' Own Words Prove Extreme Deceit (and Irrelevance) of Trump Immunity Decision (Part I)

The animating principle of our entire Constitution is the sovereignty of the people

For Trump v. United States, Chief Justice Roberts decided to, personally, deliver the opinion of the Court to the American people on July 1, 2024.  Four justices (Justices Thomas, Alito, Gorsuch and Kavanaugh) joined him in full.  Justice Barrett joined in everything except for one particular part (addressed below).

The most important aspect of Trump is that six SCOTUS justices (who pretend to be originalists) deceitfully pretended that something in our Constitution somehow gave an incumbent president “official” power and even “core” presidential power to knowingly violate and override express provisions of our Constitution, to obstruct (or incite others to obstruct) the counting of ballots on January 6, to change the outcome of a presidential election, and to prevent his elected successor from replacing him on inauguration day on January 20, 2021.

Six Trump justices contended that “Congress cannot act on, and courts cannot examine” some of Trump’s “actions” to change the outcome of a presidential election because such actions were within the “conclusive and preclusive” scope of “authority” that We the People granted to the president by our Constitution.  They represented, “We conclude that under our constitutional structure of separated powers, the nature of Presidential power requires that” Trump “have some immunity from criminal prosecution for official acts” (which he took to change the outcome of a presidential election and prevent his elected successor from replacing him) and “with respect to the President’s exercise of his core constitutional powers” (to attack and undermine our Constitution in such manner) “this immunity must be absolute.” 

Five Trump justices (excluding Justice Barrett) purported to find justification in our Constitution for protecting Trump even when the Constitution’s separation of powers could not even potentially support their position.  They protected Trump from even the executive branch (prosecutors) and even the sovereign people (a grand jury).

“To resolve the matter,” they all represented that “we look primarily to the Framers’ design of the Presidency within the separation of powers” and “our precedent.”  We should do the same.  We should see what those particular justices previously wrote about the Framer’s design.  We should see their own words proving that they definitely did not believe that our Constitution explicitly or implicitly gave an incumbent president any “official” (much less “core”) power to change the outcome of a presidential election or to prevent (in any way) his elected successor from replacing him on inauguration day. 

We should see their own words proving the extreme deceit in their Trump decision—their own words proving that their Trump decision was irrelevant as an impediment to any prosecution of Trump for any act at issue above. Every Trump justice knew that the first and foremost separation of powers in our Constitution was between the sovereign people and all public servants.

In Gundy v. United States, 588 U.S. 128 (2019), Justices Gorsuch and Thomas and Chief Justice Roberts issued a dissenting opinion. They emphasized that they knew “the separation of powers isn’t about protecting institutional prerogatives or governmental turf. It’s about respecting the people’s sovereign choice” about when and where “to vest” any “power” in any part of federal government. That is de facto and de jure exactly why the first sentences of Articles I, II and III expressly emphasize the “Powers” or “Power” that the people “vested in” Congress, the President and courts.

“And,” the Gundy dissenters added, “the separation of powers” is “about safeguarding a structure designed to protect” not only the sovereign people and “their liberties” as a collective, but also “minority rights, fair notice, and the rule of law.”

Our founding document begins by declaring that “We the People [did] ordain and establish this Constitution.” At the time, that was a radical claim, an assertion that sovereignty belongs not to a person or institution or class but to the whole of the people. From that premise, the Constitution proceeded to vest [parts of] the authority [of the sovereign people] to exercise different aspects of the people’s sovereign power in distinct entities. In Article I, the Constitution entrusted all of the federal government’s legislative power to Congress. In Article II, it assigned the executive power to the President. And in Article III, it gave independent judges the task of applying the laws to cases and controversies.

In Ariz. State Legis. v. Ariz. Indep. Redistricting Comm’n, 576 U.S. 787 (2015), Chief Justice Roberts and Justices Scalia, Thomas and Alito issued a dissenting opinion. They emphasized that the majority opinion had emphasized that the “animating principle” (the primary purpose) of our entire Constitution was to secure “popular sovereignty” (the sovereignty of the people over all public servants). Then, the dissenters, themselves, emphasized that “the ratification of the Constitution was the ultimate act of popular sovereignty, and the people who ratified” it “did so knowing that it assigned authority to ‘the Legislature’ as a representative body” (to represent the sovereign people). Congress exercised that very power in making Trump’s conduct criminal.

In Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244 (2024), Justice Gorsuch wrote a concurring opinion to emphasize that “the Constitution promises” that “the American people are sovereign and they alone may, through democratically responsive processes, amend our foundational charter or revise federal legislation. Unelected judges enjoy no such power.”

In United States v. Vaello-Madero, 596 U.S. 159 (2022), Justice Gorsuch wrote a concurring opinion to emphasize that “in our Constitution” every part of the federal government (including the president and SCOTUS) “deriv[es] its powers directly” from “the sovereign people.” He was quoting Chief Justice Marshall in McCulloch v. Maryland in 1819. He also cited Chief Justice Marshall in Marbury v. Madison in 1803 to emphasize that every part of the federal government (including the president and SCOTUS) “is empowered to act only in accord with the terms of the written Constitution the people have approved.” He also quoted James Madison in The Federalist No. 45 to emphasize the following. “Empires and duchies in Europe may have subscribed” to the “doctrine” that “the people were made for kings, not kings for the people.” “Monarchical and despotic governments” may possess the power to act “unrestrained by written constitutions.” “But our Nation’s government” has “no existence” (no power of any part of federal government exists) “except by virtue of the Constitution,” and our representatives in federal government were not delegated any power to “ignore that charter.”

In Georgia v. Public.Resource.Org, Inc., 590 U.S. 255 (2020), Justices Thomas and Alito issued a dissenting opinion in which they emphasized “the Constitution’s recognition that sovereignty resides in the people.” They emphasized “under the Constitution, sovereignty lies with the people, not a king.” They cited The Federalist No. 22 and No. 39.¹

In Gamble v. United States, 587 U.S. 678 (2019), Justice Gorsuch in a dissenting opinion emphasized that “[u]nder our Constitution, the federal and state governments are but two expressions of a single and sovereign people.”

In Alden v. Maine, 527 U.S. 706 (1999), Justices Kennedy, O’Connor, Scalia and Thomas and Chief Justice Rehnquist were in the majority. They emphasized that “the Constitution begins with the principle that sovereignty rests with the people.” They emphasized that our Constitution (the Preamble) begins by expressly emphasizing that “the people” did “ordain and establish the Constitution.”

Justices Souter, Stevens, Ginsburg and Breyer issued a dissenting opinion that was far more powerful and explicit about the power of the sovereign people. They emphasized the opinions of three Framers, including two justices “in Chisholm v. Georgia” in 1793 “a bare two years” after “the Bill of Rights,” including “the Tenth Amendment,” was “added to the original Constitution.”²

“In representing Chisholm, Edmund Randolph,” who was not only a “Framer” but also later “Attorney General,” emphasized that “the present Constitution produced a new order of things. It derives its origin immediately from the people.”

“Chief Justice Jay” (John Jay, who helped write The Federalist Papers and create the New York Constitution) wrote in Chisholm (with italics added by the Alden dissenters) “at the Revolution, the sovereignty devolved on the people; and they are truly the sovereigns of the country, but they are sovereigns without subjects” in that they “have none to govern but themselves; the citizens of America are equal as fellow citizens, and as joint tenants in the sovereignty.”

Most of all, the Alden dissenters emphasized “Justice Wilson’s position in Chisholm,” i.e., that “the people” clearly “are sovereign” under our Constitution. They quoted Justice Wilson in Chisholm:

To the Constitution of the United States the term SOVEREIGN, is totally unknown. There is [only] one place where it could have been used with propriety [i.e., in the Preamble]. But, even in that place it would not, perhaps, have comported with the delicacy of those, who ordained and established the Constitution. They [the people could] have announced themselves ‘SOVEREIGN’ people of the United States: But serenely conscious of the fact, they avoided the ostentatious declaration.

Although not included in the Alden dissent, Justice Wilson in Chisholm also emphasized the separation of powers between the sovereign people and all public servants by emphasizing our Constitution’s structure and the power of such structure. “The PEOPLE of the United States” are “the first personages introduced” by (what we call) the Preamble. Even the structure of Articles I, II and III emphasize the sovereignty of the people. Our Constitution introduces, first, the People, second, our directly-elected representatives in Congress, third, our indirectly-elected representative, the president, and, last, the unelected judges of SCOTUS and lower courts.

The Alden dissenters further emphasized that Justice Wilson had written previously “that the sovereignty resides in the people; they have not parted with it; they have only dispensed” (to their public servants in federal government) only “such portions of [their own] power as were conceived necessary for the public welfare.” That is exactly the plain meaning of the plain text of the Preamble, Article I and the Tenth Amendment.³

Article I emphasized that our elected representatives in Congress were given all (and only) the power “[t]o make all Laws” that were “necessary and proper for carrying into Execution” absolutely “all” the “Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” Many Federalists and Antifederalists emphasized during the ratification debates in the 1780’s that such provision (especially when read together with the Preamble) stated the limits of all power of any federal employee, including the president and SCOTUS. Many subsequently emphasized the same about the Tenth Amendment. No federal employee, including the president or SCOTUS, could have any power that is not “necessary and proper” to support and defend (not attack and undermine) our Constitution.

Amendment X emphasized that only limited “powers” were “delegated to the United States by the Constitution,” and some “powers” were “prohibited” to “the States,” and all “powers” that were not “delegated” by “the people” to public servants in federal or state government were “reserved” to “the people.”

The Alden dissenters also emphasized a particular aspect of popular sovereignty that is relevant to Trump. When any “action” of any public servant “is unconstitutional,” it “is not the word or deed of the” sovereign people. It “is the mere wrong and trespass of those individual persons who falsely speak and act in [their] name.” They were quoting SCOTUS precedent in Poindexter v. Greenhow, 114 U.S. 270 (1885).

Alexander Hamilton emphasized something similar in The Federalist No. 83: “Wilful abuses of a public authority, to the oppression of” the people “are offenses against the government” (not actions of the government) “for which the persons who commit them may be indicted and punished” (criminally) “according to the circumstances of the case.” Many early leaders emphasized that particular point when they impeached SCOTUS Justice Samuel Chase (for viciously depriving people of liberty and property without due process of law in knowing violation of the express provisions of the Sedition Act of 1798). Justice Chase irrefutably committed crimes in Section 1 of the Sedition Act.

In Poindexter, SCOTUS was even more emphatic:

The government is an agent [of the sovereign people], and, within the sphere of the agency, a perfect representative; but outside of that, it is a lawless usurpation. . . . [T]he maxim, that the king can do no wrong, has no place in our system of government. . . . That which, therefore, is unlawful because made so by the supreme law, the Constitution of the United States, is not the word or deed of the [the sovereign people], but is the mere wrong and trespass of those individual persons who falsely speak and act in [their] name. It was upon the ground of this important distinction that [SCOTUS already had decided very important cases].

In Poindexter, SCOTUS emphasized that the foregoing were extremely important in the history of our nation, of our Constitution and of SCOTUS. After the Civil War, SCOTUS “adjudged that the acts of secession” were “the unlawful acts of usurping [individuals], and not the acts of the States themselves.” SCOTUS “adjudged” that “the war” was not “between the States, nor a war of the United States against States, but a war of the United States against unlawful and usurping [individuals], representing not the States, but [only] a rebellion against the United States. This is, in substance, what was said by Chief Justice [Salmon] Chase” (not the impeached Justice Samuel Chase) in a prior decision “when he declared” that “the Confederate government” was “simply the military representative of the insurrection” (not the representative of any State) “against the authority of the United States.”

This distinction is essential to the idea of constitutional government. To deny it or blot it out obliterates the line of demarcation that separates constitutional government from absolutism, free self-government based on the sovereignty of the people from that despotism, whether of the one or the many, which enables the agent of the State to declare and decree that he is the State; to say [as the French king famously did] “L’Etat c’est moi.”

The principle at issue here was encapsulated by Congress in multiple federal statutes, including criminal statutes. Such statutes include 18 U.S.C. Sections 241, 242, and 371. See, e.g., “On Liberty” Is on Sovereignty, footnote 2; The Nexus between Black-Collar Crime and Presidential Crime (Part II) and The Nexus between Black-Collar Crime and Presidential Crime (Part III).

In Obergefell v. Hodges, 576 U.S. 644 (2015), Justices Alito, Scalia and Thomas, issued a dissenting opinion. They emphasized, “In our system of government, ultimate sovereignty rests with the people, and the people have the right to control their own destiny. Any change on a question so fundamental should be made by the people through their elected officials.” Few issues are as fundamental to our destiny and our Constitution as the power of the people to elect (choose or change) our own representatives and to punish those representatives who usurp power by knowingly, viciously and maliciously violating, attacking and undermining our sovereignty.

1. James Madison, in The Federalist No. 39 in 1788 emphasized that “a republic” means “a government which derives all its powers directly or indirectly from the great body of the people.” All American “government” must “be strictly republican” to be consistent with “the genius of the people of America” and “the fundamental principles of the Revolution.” Alexander Hamilton, in The Federalist No. 22 emphasized, “The fabric of American empire” (our Constitution) rests on “THE CONSENT OF THE PEOPLE. The streams of national power” were designed “to flow immediately from that pure, original fountain of all legitimate authority.”

2. A fourth Framer, James Iredell, also was a SCOTUS justice at the time of Chisholm. Shortly after Chisholm, in a dissenting opinion in Penhallow v. Doane’s Administrators, 3 U.S. (Dall.) 54, Justice Iredell addressed popular sovereignty:

By a State forming a Republic [ ] I do not mean the Legislature of the State, the Executive of the State, or the Judiciary, but all the citizens which compose that State, and are [ ] integral parts of it; all together forming a body politic. . . . [I]n a Republic, all the citizens, as such, are equal, and no citizen can rightfully exercise any authority over another, but in virtue of a power constitutionally given by the whole community, and such authority when exercised, is in effect an act of the whole community which forms such body politic. In such governments, therefore, the sovereignty resides in the great body of the people, but it resides in them not as so many distinct individuals, but in their politic capacity only.

3. The principle of popular sovereignty (the sovereignty of the people) and Article I and the Tenth Amendment (and more of the Constitution) emphasize certain principles of which all SCOTUS justices are well aware. In 1964, a unanimous SCOTUS repeatedly emphasized controlling principles. In New York Times Co. v. Sullivan, 376 U.S. 254 (1964), SCOTUS unanimously emphasized, “The people, not the government, possess the absolute sovereignty.” Judges cannot “give public servants an unjustified preference over the public they serve” by giving any public servant more “immunity” than the people, themselves, “granted.” The president (and SCOTUS) can exercise only those powers that actually were delegated to them by the Constitution. The people had no power to commit the crimes Trump committed, so they simply had no such power that they could have delegated to the president to commit the crimes or SCOTUS to give the president immunity. In Eastlake v. Forest City Enterprises, Inc., 426 U.S. 668 (1976), Chief Justice Burger reiterated a relevant point made in prior precedent, “The sovereignty of the people is itself subject to those constitutional limitations which have been duly adopted and remain unrepealed.”