The Dobbs Fraud by SCOTUS's Fake Originalists (Part IX)

Falsehoods about the First Amendment and unenumerated rights

If you want to know how judges lie and deceive, read what judges say about how judges lie and deceive. SCOTUS justices have, at times, been remarkably candid and insightful. Justice Thomas, for example, recently criticized Justice Alito for his tricks.

In Consumer Fin. Prot. Bureau v. Cmty. Fin. Servs. Ass'n of Am., Ltd., on May 16, 2024, Justice Thomas criticized Justice Alito for “winding” his “way through English, Colonial, and early American history” but “never connect[ing]” his meandering “summary of history back to the” relevant language in the Constitution. Even worse, Justice Alito’s “rendition of history largely ignores the historical evidence that bears most directly on the meaning of” the language of the Constitution at issue.

Justice Rehnquist similarly criticized a particular trick by other justices in Wallace v. Jaffree, 472 U.S. 38 (1985) shortly before he was elevated to the chief justice’s chair. “It is impossible to build sound constitutional doctrine upon a mistaken understanding of constitutional history.” The Dobbs majority knew that to be true, but that is exactly what they did in 2022.

The Dobbs majority pretended to build purported “constitutional doctrine upon” falsehoods and deception about “constitutional history.” They pretended that the issue in Dobbs was whether SCOTUS had the power to refuse to “recognize” a “right.” To purport to justify the foregoing pretense, the Dobbs majority relied on a clear and crucial falsehood: that the right at issue was “unenumerated.”

The right at issue in Dobbs clearly was within the Originals’ concept of the right to exercise sovereignty over self (see Part VI and Part VII), and the originalists on SCOTUS knew that to be true. They also knew that the right at issue in Dobbs clearly was well within the aspects of our humanity and sovereignty over self that the First and Fourth Amendments protected expressly—the rights regarding our own thoughts, conscience and person. The right at issue in Dobbs even more clearly did not infringe on any right of any other person or on any other citizen’s sovereignty over self.

The people, themselves, clearly claimed the right at issue in Dobbs in the Declaration of Independence. Very emphatically, “the Laws of Nature and of Nature’s God” established that “all” had the right to rule themselves consistent with their own ideas about “Life, Liberty, and the Pursuit of Happiness.” No public servant has any power to pretend otherwise. All “the People” had and have the “Right” and the “Duty” to establish and ensure true and honest “Guards for” the “Security” of “the People.”

The essence of American society and government were obvious in the plain text of the Declaration of Independence. The people expressly recognized their sovereignty over themselves. They also expressly recognized they were sovereign over any public servants who might represent them. They did so again in the Constitution. As Amendment IX and Amendment X emphasize, all “rights” (even if not in any “enumeration”) were “retained by the people,” and our representatives (public servants) were merely “delegated” only limited “powers” over our exercise of our rights, i.e., only to the extent permitted “by the Constitution.”

Of the Framers of the Constitution and the Bill of Rights, James Madison was among the best informed about and most deeply concerned with the rights of the people and the powers of public servants relevant to Dobbs. Madison was the member of Congress most involved in preparing and then defending the Bill of Rights—especially the rights secured by the First Amendment.

The fact that members of Congress failed to accept all of Madison’s proposed text for the Bill of Rights is not evidence that they did not agree with Madison’s views of the rights at issue. Parts of Madison’s proposed text were rejected for stylistic or political reasons. Moreover, Madison’s more elaborate language (for his proposed Bill of Rights) has been acknowledged and accepted as correct by many SCOTUS justices, including in copious SCOTUS precedent.

For purely political reasons some important people opposed language or principles that Madison proposed for the original Constitution or Bill of Rights. Perhaps the most important such reason was that powerful or influential people who were (or who wanted to be) powerful state officials fought to maintain their power, influence and supposed sovereignty over citizens. Patrick Henry provided a powerful example. Having failed (when the Constitution was ratified), they fought to perpetuate at least the perception that state officials possessed such power and sovereignty. So they opposed and altered language that Madison proposed for the Bill of Rights.

The language that Madison proposed and what he said about it sheds much-needed light on our right to be sovereign over self, including our right to freedom of conscience and our right to be secure in our persons from unreasonable state control (which were at issue in Dobbs). Highly relevant here, Madison wanted to make much more clear to all (to the people and to public servants) the great power of the people over themselves and over public servants and the much more limited power of public servants over people. So Madison proposed to begin the Bill of Rights with a loud, clear echo of the Declaration of Independence. Madison proposed “a declaration:”

That all power is originally vested in, and consequently derived from the people.

That government is instituted, and ought to be exercised for the benefit of the people; which consists in the enjoyment of life and liberty, with the right of acquiring and using property, and generally of pursuing and obtaining happiness and safety.

That the people have an indubitable, unalienable, and indefeasible right to reform or change their government, whenever it be found adverse or inadequate to the purposes of its institution.

Madison’s proposed declaration, above, and his emphasis on particular rights, below, were not unusual. Similar language was and is included in many state constitutions, including Virginia’s Declaration of Rights, Sections 1-3, 12, 15, 16. Madison followed the foregoing with the following. But members of Congress protecting the interests of people who were rich, powerful or influential in states converted Madison’s proposal into our First Amendment (expressly restricting only the powers of federal officials):

The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext infringed.

The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.

The people shall not be restrained from peaceably assembling and consulting for their common good; nor from applying to the legislature by petitions, or remonstrances for redress of their grievances.

People who represented state interests in Congress changed Madison’s proposal to read as our First Amendment does. People protecting people with power or influence in or over state government ensured the First Amendment restricted only federal government: “Congress shall make no law.” The First Amendment’s express focus on federal power was exploited for generations by many people in power who abused it to pretend to justify invading our rights and our sovereignty—very much in the manner that the Dobbs majority did.

Any hint of the First Amendment’s crippling limitation (focusing on federal power, alone) was conspicuously absent from Madison’s proposed Bill of Rights. Much more relevant here, Madison’s language clearly emphasized the freedom and rights at issue in Dobbs. Madison emphasized what many states emphasized about such rights:

The freedom of the press [expression] and rights of conscience [are the] choicest privileges of the people . . . . [So t]he people of many states, have thought it necessary to raise barriers against power in all forms and departments of government.

It may be said, in some instances they do no more than state the perfect equality of mankind; this to be sure is an absolute truth . . . .

Trial by jury cannot be considered as a natural right, but a right resulting from the social compact which regulates the action of the community, [and it] is as essential to secure the liberty of the people as any one of the pre-existent rights of nature.

[The proposed amendments will have] a salutary effect against the abuse of power. If they are incorporated into the constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the constitution by the declaration of rights.

As a result, Madison followed the protections addressed above by proposing express limits on the power of state officials:

No state shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases.

Madison particular forcefully defended and advocated this particular amendment:

[it] interdicts the abuse of certain powers in the state legislatures, some other provisions of equal if not greater importance than those already made . . . [including] that no state shall violate the equal right of conscience, freedom of the press [expression], or trial by jury in criminal cases; because it is proper that every government should be disarmed of powers which trench upon those particular rights. . . . [A]nd nothing can give a more sincere proof of the attachment [ ] to these great and important rights, than to [provide for] the security I have now proposed; because it must be admitted, on all hands, that the state governments are as liable to attack these invaluable privileges as the [federal] government is, and therefore ought to be as cautiously guarded against.

Another member of Congress noted that

Mr. Madison Conceived this [restraint on the power of state officials] to be the most valuable amendment on the whole list; if there was any reason to restrain the government of the United States from infringing upon these essential rights, it was equally necessary that they should be secured against the state governments.

In the 1860’s, after rich, powerful and influential people in many states ripped apart our Union (and attempted to rip-up our Constitution), Congress and Americans eventually made the same point as Madison had with Amendment XIV. They expressly and specifically secured “the privileges or immunities of citizens.” “All persons born or naturalized in the United States” also emphatically had the right to “life, liberty, or property” secured by “due process of law” and “equal protection of the laws.”

Perhaps it is not entirely coincidental that promptly after Amendment XIX was ratified (finally acknowledging that women were fully persons and citizens), SCOTUS precedent also changed radically in a respect that is relevant to Dobbs. SCOTUS justices finally started acknowledging in precedent that the Fourteenth Amendment required federal judges to enforce much of the Bill of Rights (starting with First Amendment freedoms of conscience and expression) to restrain state officials infringing on the rights of individuals.

The Dobbs majority plainly misrepresented and disregarded copious constitutional history. They plainly pretended to build purported “constitutional doctrine upon” outright falsehoods and blatant deception about “constitutional history.” No person rationally could (and throughout nearly our entire history no one actually did) argue that any state or federal constitution permits state or federal officials to infringe on the rights of existing “persons” over their own consciences and bodies in favor of mere future “persons.” No one now could believe (much less show) that any state or federal constitution permits politically or religiously powerful or influential people to impose their religious and political views on others.