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

The Originals clearly did not intend their enumeration to limit our rights

A true and honest originalist would think about our rights as the Originals actually thought about their rights. Many of the Originals even said that very thing, including in the Constitution, itself. They repeatedly emphasized that their views of rights cannot—consistent with our Constitution—constrain our views of our rights.

In his illustrious Lectures on Law (which he wrote while serving as a SCOTUS justice) James Wilson emphasized that “right is weighed by principle; it is not estimated by numbers.”¹

Noah Webster (a prolific author whom Alexander Hamilton recruited to become an editor for a Federalist Party newspaper) emphasized this particular point in 1787 during the debates over the Constitution (with Webster’s own emphasis):

a standing Bill of Rights is absurd, because no constitutions, in a free government, can be unalterable. The present generation have indeed a right to declare what they deem a privilege; but they have no right to say what the next generation shall deem a privilege.

Alexander Hamilton in The Federalist No. 84 also emphasized that the sovereign people simply had no need to expressly reserve any rights in a Bill of Rights:

[Regarding rights] the people surrender nothing; and as they retain every thing they have no need of particular reservations [of rights]. "WE, THE PEOPLE [ ] to secure the blessings of liberty to ourselves and our posterity, do ORDAIN and ESTABLISH this Constitution [ ]." Here is a better recognition of popular rights, than volumes of [any] aphorisms [in any] bills of rights, and which would sound much better in a treatise of ethics than in a constitution of government.

Far earlier (in 1775), Alexander Hamilton had emphasized (contrary to the pretenses of the Dobbs majority) that we cannot divine the truth about our rights by merely rummaging through old parchments and papers. SCOTUS justices (and we) must look to the profound self-evident truths of human nature:

The sacred rights of mankind are not to be rummaged for, among old parchments, or musty records. They are written, as with a sun beam, in the whole volume of human nature, by the hand of the divinity itself; and can never be erased or obscured by mortal power.

To truly understand Hamilton’s point and the relevance of the First, Second, Fourth, Ninth and Tenth Amendments to Dobbs, it is crucial to understand how the Originals viewed the most fundamental and crucial concept in the Constitution: popular sovereignty. Clearly, Amendments I through IV and IX and X (and significant aspects of Amendments V and VI) reflected (were implicit in) the revolutionary new concept of the sovereignty of the people over their own thoughts, beliefs, communications, persons, houses, papers and effects.

James Madison addressed the concept of sovereignty in the context of an early nationwide battle over rights secured by the First Amendment. President Adams and Congress had enacted the Sedition Act of 1798. Madison repeatedly and compellingly proved the unconstitutionality of Section 2 (criminalizing criticism of the president and other federal officials).

Madison authored the Virginia Resolutions of 1798, which he subsequently defended in his Report of 1800 for the Virginia legislature. In the Report, Madison emphasized “our constitution” was “issued from the sovereign authority of the people,” i.e., by “the people” in “their highest sovereign capacity.” So the Constitution expressly confirmed “the sovereignty of the people over constitutions” and the “authority of constitutions over governments,” and both are “truths which are at all times necessary to be kept in mind.”

In New York Times Co. v. Sullivan, 376 U.S. 254 (1964) SCOTUS reminded us of Madison’s reminder of our own sovereignty: “The people, not the government, possess the absolute sovereignty.” So naturally and necessarily, “the censorial power” generally “is in the people over the Government, and not in the Government over the people.”

James Wilson of Pennsylvania made the same point in the original Constitution, itself, as well as shortly thereafter to encourage its ratification. Who Wilson was is important. Wilson was among the foremost authorities to address the concept of sovereignty in America. He was one of only six to sign both the Declaration of Independence and the Constitution. He became a SCOTUS justice and a law professor, helping future lawyers understand the Constitution that Wilson helped write. Wilson is credited with the three vital words that started the Constitution: “We the People.”

Wilson repeatedly explained the import of those three words during the ratification debates. They “announced” that the Constitution was created by and for the people “in their name.” The Constitution “receives its political existence from their authority: they ordain and establish.” (The Preamble clearly and directly emphasized the sovereignty of the people: “We the People” do “ordain and establish this Constitution” (and every part of federal government) to “establish Justice” and “secure the blessings of Liberty to ourselves”). As a result, Wilson emphasized that “the leading principle in the politics, and that which pervades the American constitutions, is, that the supreme power resides in the people.” “[T]he fee-simple remains in the people at large, and by this Constitution they do not part with it.” “[T]he necessary consequence” of this fact is that it eliminates “the necessity of a bill of rights.” Stated another way, our Bill of Rights merely states principles that the Framers knew (and agreed) were implicit in the original Constitution. Wilson emphasized that the fact that the Constitution was created by the people for the people has “more force than” an entire “volume written on the subject [of rights]. It renders this truth evident—that the people have a right to do what they please with regard to the government.”²

The people delegated to federal “government” only limited “powers,” i.e., powers that were “necessary and proper” to carry out powers vested in (delegated to) federal government (as Article I and the Tenth Amendment emphasized), so “a bill of rights” was “unnecessary” and even “highly imprudent” because “many” actual “rights” simply “cannot be particularly enumerated.” The greatest concern of Wilson (and other Federalists who opposed enumerating rights in a bill of rights) was that “an imperfect enumeration would throw all implied power into the scale of the government” (it would imply that government had powers that were not, in fact, delegated to it) “and the rights of the people would be rendered incomplete.”³

“The truth is, that, in our governments, the supreme, absolute, and uncontrollable power remains in the people. As our constitutions are superiour to our [government]; so the people are superiour to our constitutions.” “[T]he supreme power resides in the people; and that they never part with it.” “The consequence is, that the people may change the constitutions” and “[t]his is a right, of which no positive institution can ever deprive them.”⁴

Wilson emphasized much the same as a SCOTUS justice in Chisholm v. Georgia, 2 U.S. 419, 454-457 (1793). “[T]he term SOVEREIGN” was not used in the original “Constitution,” but the Preamble is the “one place where it could have been used with propriety.” Those “who ordained and established” our “Constitution” could “have announced themselves ‘SOVEREIGN’ people of the United States.” Each “free man” is “an original sovereign” and “an aggregate of free men” is “a collection of original sovereigns.” In our “republican” governments “the Supreme Power resides in the body of the people.” In our state and federal constitutions, “the people” of the “States, and of the United States,” are “citizens” who “have reserved the Supreme Power in their own hands; and on that Supreme Power have made the State dependent.”

Charles Cotesworth Pinckney in a speech at the South Carolina ratifying convention emphasized the same point:

In every government there necessarily exists a power from which there is no appeal, and which, for that reason, may be formed absolute and uncontrollable.

The person or assembly in whom this power resides is called the sovereign or supreme power of the state. With us, the sovereignty of the Union is in the people.

The consequence of our sovereignty is far more profound and pervasive and relevant to our every-day lives than Wilson (or SCOTUS in Dobbs) addressed. Many provisions of our Constitution emphasize the sovereignty of the people. The most important is the Preamble. It clearly emphasized (including with pride of place) that the people created the Constitution for their own purposes stated in the Preamble. The First Amendment protects what we think, believe and say (for ourselves and each other). The First Amendment and the ban on religious tests go hand-in-glove with the Preamble.

Particular speech (voting) is extremely important and fundamental to our sovereignty. The right and power to vote is the right and power to have a voice in public affairs. Only sovereign citizens have such a voice. Sovereign citizens have the power to choose our representatives who then represent us by creating and enforcing laws. So such speech (voting) was addressed and protected in much of the Constitution (in Articles I and II and in eight amendments (Amendments XII, XIV, XV, XVII, XIX, XXIV, XXV, XXVI)). The right and power to serve as jurors (addressed in Article III and Amendments V, VI, VII) also manifested our sovereignty. Jurors’ powers made them superior (in some crucial respects) to judges. Article V also acknowledged that the Constitution can be amended (the people retained the power to revise our Constitution to better accomplish the purposes stated in the Preamble).

Wilson again emphasized that “the truth is, that the supreme, absolute, and uncontrollable authority remains with the people.” “[T]he supreme power” in America “resides in the people, as the fountain of government.” Wilson emphasized (as the Tenth Amendment subsequently said) “the people have not” and “the people meant not” and “the people ought not” ever “part with” their “supreme power” to “any government whatsoever. In their hands it remains secure. They” merely “delegate it in such proportions, to such bodies, on such terms, and under such limitations, as they think proper.”⁵

Returning to Webster’s point about the Bill of Rights, when it was being created, James Madison, the principal author, even explained clearly and compellingly why he opposed enumerating additional rights: “if we confine ourselves to an enumeration of simple acknowledged principles, the ratification will meet with but little difficulty.” The Bill of Rights was kept short to facilitate quick ratification, not to limit our rights with its enumeration.

An Anti-Federalist (writing under the pseudonym Federal Farmer and who objected to the absence of a bill of rights from the original Constitution) also declined to attempt to enumerate many rights. “It is not my object to enumerate rights of inconsiderable importance, but there are others, no doubt, which ought to be established as a fundamental part of the national system.”

Madison (and essentially everyone involved) wanted to quickly amend the Constitution. They wanted, in part, to fulfill the agreement and promise of the Federalists to promptly amend the Constitution to include a Bill of Rights. The Federalists made that agreement and promise to cause the people of multiple states to ratify the Constitution. But as soon as practicable, Congress wanted to get on with the business of creating and operating the federal government that the people required in the Constitution—in very significant part to restrain state governments from abusing the people.

Madison even compromised the one revision of the Constitution that he considered “the most valuable.” Madison proposed (and defended his proposal) that the Constitution be amended to further restrain states. Madison insisted that the Constitution should expressly protect some rights from states. The rights Madison enumerated included the right that the Dobbs majority pretended they simply could not see: “No state shall infringe the equal rights of conscience, nor the freedom of speech, or of the press, nor of the right of trial by jury in criminal cases.” Madison emphasized that he believed “this to be the most valuable amendment on the whole list” of the amendments proposed in 1789.

We never should lose sight of the foregoing about our sovereignty and our rights. Madison repeatedly and emphatically sought and fought to protect “equal rights of conscience” because such rights necessarily were implied in the concept of our sovereignty. We the people are our own sovereigns especially regarding ourselves, so we necessarily always did and always will have the right to believe whatever our own consciences say we should believe. Eventually, SCOTUS agreed.

In October 1788, Madison emphasized to Jefferson his profound fear “that the rights of Conscience in particular, if submitted to public definition” (by state legislators and majorities advocating particular religions in many states) “would be narrowed much more” than would be consistent with each person’s sovereignty over his own heart and mind and soul. In the same letter, Madison also said much more that is relevant to Dobbs:

In Virginia I have seen the bill of rights violated in every instance where it has been opposed to a popular current. Notwithstanding the explicit provision contained in that instrument for the rights of Conscience it is well known that a religious establishment [would] have taken place in [Virginia], if the legislative majority had found as they expected, a majority of the people in favor of the measure; and [ ] if a majority of the people [held one view of religion], the measure would still take place [ ] notwithstanding the additional obstacle which the law has since created. Wherever the real power in a Government lies, there is the danger of oppression. In our Governments the real power lies in the majority of the Community, and the invasion of private rights [will most likely come] from acts in which the Government is the mere instrument of the major number of the constituents. This is a truth of great importance, but not yet sufficiently attended to. . . . Wherever there is an interest and power to do wrong, wrong will generally be done, and not less readily by a powerful & interested party than by a powerful and interested prince.

The statements by Hamilton, Webster, Wilson and Madison, above, are the reason for the Ninth Amendment. The Framers expressly emphasized that all “rights” are “retained by the people” (regardless of whether some are included in any “enumeration”). They even emphasized that any “enumeration” of “rights” in “the Constitution” cannot be abused (by SCOTUS justices) to pretend to justify “deny[ing]” or even “disparag[ing]” other rights “retained by the people.” The Dobbs majority did no better than do exactly what the Ninth Amendment expressly prohibited.

The Tenth Amendment further emphasized another aspect of our Constitution that is contrary to the conduct of the Dobbs majority. SCOTUS has only the “powers” that were “delegated to” it “by the Constitution.” All other “powers” that are relevant to Dobbs were emphatically “reserved” to “the people.”

The Ninth and Tenth Amendments must be read together, and they must be read with the Preamble and the provisions governing our right to vote to accurately understand how the Constitution protects and presents the sovereignty of the people and our rights. Plainly put, all rights are reserved to the people, and only limited powers have been delegated to our public servants to regulate our exercise of our rights.

The First Amendment emphasized another aspect of our Constitution that even more clearly and even more emphatically precluded the conduct of the Dobbs majority. Consistent with each person’s sovereignty over his own heart, mind and soul, no part of the federal government was delegated any power to make any purported “law respecting an establishment of religion” or “prohibiting the free exercise” of any matter of individual conscience. By deciding to reverse Roe v. Wade, the majority in Dobbs intentionally acted to help state legislators make and enforce laws respecting an establishment of religion and egregiously interfering with freedom of conscience.

True and honest originalists would not ignore the fact that Americans devoted the time and effort that they did to writing and ratifying amendments to our Constitution. True and honest originalists would not ignore the plain text and plain meaning of the most important amendments to our Constitution or the history of such amendments.

True and honest originalists—indeed, anyone sincerely seeking to support and defend our Constitution—would read and apply the plain text and plain meaning of our current Constitution in the manner that James Wilson, James Madison and Alexander Hamilton (and John Bingham and Abraham Lincoln) would if they lived today. Considering what they thought about the Constitution as it existed in their time is only the beginning of the analysis. True and honest originalists would consider what the Originals would think about the Constitution as it actually exists in our time.

True and honest originalists would not, as the SCOTUS majority did in Dobbs, pretend to try to understand our Constitution by isolating one or more provisions. As they knew (and as Chief Justice Marshall famously emphasized) the Constitution paints a massive portrait of our “constitution” as a people and as a nation. The big picture cannot be seen by merely over-analyzing one square meter. The Originals did not design our Constitution to be parsed phrase by phrase as SCOTUS justices pretend to interpret our Constitution.

The First Amendment was crucial and profoundly fundamental, but it merely explicitly declared principles that were implicit in multiple provisions of the original Constitution (including in the Preamble and regarding voting and Congress’s particular free speech protection). In contrast, the Thirteenth, Fourteenth, Fifteenth and Nineteenth Amendments were exceedingly radical, even revolutionary, amendments. Justice Alito and his adherents in Dobbs and Alexander ignored or misrepresented the import of them all.

The foregoing facts and the plain text and plain meaning of multiple amendments to the Constitution directly and emphatically point at where in the Constitution to find the rights at issue in Dobbs. The right is well-known and cherished by most, if not all, today who think even a little about our freedoms and our sovereignty over our own hearts, minds, souls and bodies.

1. James Wilson, Lectures on Law, Part 2, Chapter XI, Of Citizens and Aliens, 1790-1791, 2 Collected Works of James Wilson p. 1043.

2. James Wilson, Speech to the Pennsylvania Convention, Nov. 28, 1787, 1 Collected Works of James Wilson p. 163.

3. James Wilson, Speech to the Pennsylvania Convention, Nov. 28, 1787, 1 Collected Works of James Wilson p. 164.

4. James Wilson, Speech to the Pennsylvania Convention, Nov. 26, 1787, 1 Collected Works of James Wilson p. 161.

5. James Wilson, Speech to the Pennsylvania Convention, Dec. 4, 1787, 1 Collected Works of James Wilson p. 177.