The Dobbs Fraud by SCOTUS's Fake Originalists (Part VII)
Americans fought four revolutions for the sovereignty of the people
As the caption for this series emphasizes, it exposes a fraudulent pretense by those in the Dobbs majority. They pretended in their Dobbs opinion that they accurately and correctly interpreted our Constitution regarding the extent of each person’s freedom to choose how to live her own life, including what to do with her own body. As Part VI emphasized, the primary point of our Constitution was re-confirming—clearly and conclusively in a written constitution—a crucial concept: the sovereignty of the people for the purposes stated in the Preamble.1
It is an unfortunate fact that most discussions of sovereignty in America presume sovereignty belongs to governments. Such focus and such presumption often are the result of public officials’ self-aggrandizement. Too often, the people speaking about sovereignty are asserting their own powers over or against other people. Their considerations of sovereignty are stunted and very often entirely self-serving. They often are not objective, full or even accurate. Contending or pretending that sovereignty is something that governments own is obviously false and egregiously misleading, including in respects vital to the deception by the Dobbs majority.
All government employees are mere representatives of the people, mere public servants. The Declaration of Independence and copious additional contemporaneous evidence (documentation) confirmed that fact. Our Constitutions (state and federal) repeatedly and emphatically confirmed that fact. Copious evidence of the ratification discussions of 1787-1790 about our Constitution, our rights and our representatives in government confirmed that fact.2
Even SCOTUS precedent repeatedly emphasized that public officials are public servants. For example, 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.” SCOTUS did so to emphasize facts about the First Amendment that are relevant to Dobbs.
All “public [officials], are, as it were, public property,” so “discussion” and “criticism” of public officials’ public service is “the right” of sovereign citizens and even “the duty.” Such right “cannot be denied” and it “must not be stifled.” Our “public servants” are not entitled to “an unjustified preference over the public they serve.” For example, if any “statements” (e.g., criticizing the Dobbs majority) “amount to defamation, a judge” certainly can sue “for libel as do [all] other public servants.”
All powers of all public officials in America necessarily exist and may be exercised only for the purposes emphasized in our Constitution’s first sentence. “We the People” created our Constitution and our entire national government to “establish Justice, insure domestic Tranquility,” “promote the general Welfare, and secure the Blessings of Liberty to ourselves.” Everything and everyone in our Constitution exists only to serve such purposes. All operations of all governments and all conduct of all public servants must serve only such purposes.
One of the authorities that most influenced the Founders’ views reflected in the Declaration of Independence and the Constitution was Montesquieu. Montesquieu’s most influential thoughts included those about the sovereignty of the people:
There can be no exercise of sovereignty but by their suffrages [voting to express] their own will; now the sovereign’s will [citizens’ suffrage (voting)] is the sovereign himself. The laws therefore which establish the right of suffrage are fundamental to this government. And indeed it is as important to regulate in a republic, in what manner, by whom, to whom, and concerning what, suffrages [the right to vote] are to be given, as it is in a monarchy to know who is the prince, and [how] he ought to govern. . . . The people, in whom the supreme power resides [in a republic], ought to have the management of everything within their reach.
The reach of each person, first and foremost, extends to her own self. All American citizens, first and foremost, are their own sovereigns. The most fundamental and crucial aspect of our sovereignty is that we are sovereign over our own selves. All citizens have sovereignty over their own hearts, mind, bodies and souls. We are free to think, say and do exactly and entirely as we please—as long as we fulfill our duties to society (support our Constitution) and do not injure, or infringe on the rights of, any other person, individually or collectively (as a society).
Only second may citizens (collectively) exercise sovereignty (power) over other persons to interfere with the latter’s sovereignty over themselves. Only for a particular purpose do private persons or public officials have the power to interfere with other persons’ rights: solely to enforce duties to society (support our Constitution) or to prevent injury to, or infringement on the rights of, other persons. Even then, such power may be exercised only over the conduct (not the conscience, thoughts and (generally) not the words) of other persons.
The foregoing were the primary points of four complete, magnificent revolutions in America. Each such revolution centered on establishing the sovereignty of the people. The first revolution is well known as the American Revolution. The second American revolution generally is not even known now to have been a revolution then. Even so, so-called “originalists” on SCOTUS who were responsible for Dobbs know the truth about such essential history of our Constitution.
To truly see the simple truth, we must see what the Originals saw as “revolution.” To the best informed and most enlightened Founders, revolution meant a radical change in mindset, faith, and beliefs about government and sovereignty that resulted in a radical change in government. So, in its day, America’s second revolution was very well-known to be a revolution. It made some state officials fighting mad because it suddenly stripped states of their sovereignty. James Wilson and Patrick Henry both made this same point, though they were on opposite sides of this battle.
With the Articles of Confederation, state officials essentially snatched sovereignty from the people who fought for their own independence and sovereignty (declared by Congress in the Declaration of Independence (see, e.g., Part VIII)). The Articles expressly asserted and emphasized the sovereignty of the states: “Each state retains its sovereignty” and “every Power, Jurisdiction and right” except to the extent “expressly delegated to the United States.” With our Constitution, We the People snatched our sovereignty right back—and state officials knew it, too.
James Wilson repeatedly, beautifully and emphatically emphasized that the people seized sovereignty with the Constitution. See, e.g., Part VI. Wilson was one of six signers of both the Declaration of Independence and the Constitution. He was elected twice to the Continental Congress and later served as a SCOTUS Justice. Wilson was one of the leading Framers of the Constitution. He accentuated the crucial linkage between the Declaration of Independence (first and second paragraphs) and the Constitution with the vital and stirring words of the Preamble. Wilson even suggested starting the Constitution with its three most powerful words: “We the People.”
Wilson also was one of the foremost leaders supporting the Constitution’s ratification. In 1787 at the Pennsylvania Convention for ratifying the Constitution, Wilson emphasized that “America now exhibits to the world - a gentle, a peaceful, a voluntary, and a deliberate transition from one constitution of government to another” and this “happy experience teaches us to view such revolutions in a very different light - to consider them only as progressive steps in improving the knowledge of government, and increasing the happiness of society and mankind.”3
Many state officials, however, were not happy. One articulate and animated Anti-Federalist (Federal Farmer) was undoubtedly correct in his assessment of what happened at the Constitutional Convention in Philadelphia. Those discussions had been kept secret for a good and compelling reason: “had the idea of a total change been started [stated?], probably no state would have appointed members to the convention. The idea of destroying, ultimately, the state government, and forming one consolidated system, could not have been admitted.”
Robert Yates (one of New York’s representatives at the Philadelphia Convention), said much the same thing: “a system of consolidated Government, could not, in the remotest degree, have been in contemplation of the Legislature of this State” because the Constitution would “deprive the State Government of its most essential rights of Sovereignty.”
Samuel Adams similarly objected: “If the several States in the Union are to become one entire Nation, under one Legislature, the Powers of which shall extend to every Subject of Legislation, and its Laws be supreme & controul the whole, the Idea of Sovereignty in these States must be lost. Indeed I think, upon such a Supposition, those Sovereignties ought to be eradicated from the Mind.”
Patrick Henry was another particularly articulate and animated Anti-Federalist. He was Virginia’s governor right before the Philadelphia Convention. After the Convention he was furious. In June 1788, he vehemently objected (with his emphasis) to someone else’s saying that “there was no precedent for this American revolution.” To paraphrase as some would say today, someone had said this American revolution was unprecedented.
Henry also elaborated on how our Constitution was a revolution. On June 4, he demanded to know (with his emphasis) “what right had they to say, We, the People”? “[W]ho authorized them to speak the language of “We, the People, instead of We, the States? States are the characteristics, and the soul of a confederation. If the States [are] not the agents of this compact,” then the Constitution is creating “one great consolidated National Government of the people of all the States.” On June 5, Henry emphasized, “Here is a revolution as radical as that which separated us from Great Britain. It is radical in this transition” because “the sovereignty of the states will be relinquished.”
Even earlier, in January 1787, Benjamin Rush (an important, influential and enlightened Founder) repeatedly emphasized that the Revolution was on-going and continued to require the concerted efforts and devoted attention of the people:
There is nothing more common than to confound the terms of the American revolution with those of the late American war. The American war is over: but this is far from being the case with the American revolution. On the contrary, nothing but the first act of the great drama is closed. It remains yet to establish and perfect our new forms of government; and to prepare the principles, morals, and manners of our citizens [to support] these forms of government, after they are established and brought to perfection. . . .
PATRIOTS of 1774, 1775, 1776—HEROES of 1778, 1779, 1780! come forward! your country demands your services!—Philosophers and friends to mankind, come forward! your country demands your studies and speculations! Lovers of peace and order, who declined taking part in the late war, come forward! your country forgives your timidity, and demands your influence and advice! Hear her proclaiming, in sighs and groans, in her governments, in her finances, in her trade, in her manufactures, in her morals, and in her manners, “THE REVOLUTION IS NOT OVER!”
In 1792, James Madison (the primary congressional author of the Bill of Rights (the first 10 amendments to the Constitution)) emphasized that the Constitution with its Bill of Rights was a revolution. Like Wilson, above, Madison paired revolution with happiness.
In Europe, charters of liberty have been granted by power. America has set the example [ ] of [the people creating] charters of power granted by liberty. This revolution in the practice of the world, may [ ] be pronounced the most triumphant epoch of its history, and the most consoling presage of its happiness.
Years after all the foregoing events pertaining to the creation of the Constitution and the Bill of Rights, John Adams repeatedly spoke of revolutions very much in the same vein as Wilson, Henry, Madison and Rush. Adams had played particularly relevant roles in what we call the American Revolution. John Adams, Samuel Adams and their band in Boston were largely responsible for starting the American Revolution. For good reason, “the shot heard round the world” was fired and first heard in Massachusetts. Soon, Adams went to work with Thomas Jefferson to write the initial version of the Declaration of Independence for the Continental Congress.
Before and throughout the Revolutionary War, Adams served in the Continental Congress, including, essentially, as Congress’s Secretary of Defense. Afterward, he largely wrote the state constitution for Massachusetts (which was an important model for the U.S. Constitution)). Like Wilson and Rush, Adams repeatedly accentuated that revolution meant much more than war.
At first, Adams did so privately in 1815 in a letter to Thomas Jefferson. “What do We mean by the Revolution? The War? That was no part of the Revolution. It was only an Effect and Consequence of it. The Revolution was in the Minds of the People, and this was effected, from 1760 to 1775, in the course of fifteen years before a drop of blood was drawn at Lexington.”4
Adams soon publicly said something similar (but more restrained), speaking to the people through a newspaper in 1818. “The Revolution was effected before the war [even] commenced. The Revolution was in the Minds and Hearts of the People. A Change in their Religious Sentiments of their Duties and Obligations,” a change in the people’s “Religion and Conscience.” Before the Revolution, “the King, and all in Authority under him, were believed to govern” under the authority of “the God of Nature” and “Ministers” were “ordained of God.”
In striking contrast, the Constitution’s Preamble emphasized “We the People” for “ourselves” did “ordain and establish this Constitution.” The Declaration of Independence earlier had declared the independence of the people in similarly striking terms and manner. See Part VIII. So in 1818, Adams rightfully emphasized, “This radical change in the principles, opinions, sentiments, and affections of the people, was the real American Revolution.”
Consistent with the Founders’ own words and standards (and consistent with the emphasis of the Founders focusing on Montesquieu regarding the nexus between sovereignty and suffrage), Americans have fought for four revolutions relevant to the rights that the Dobbs majority said they could not see. The second revolution resulted in the original Constitution and the amendments known as the Bill of Rights. The last two revolutions resulted in radical changes to Americans’ conceptions of persons and citizens and the people. They resulted in the Reconstruction Amendments (Amendments XIII, XIV and XV) and Amendment XIX (women’s suffrage).
Voters and jurors speak with the voices of American sovereigns. Voting and helping decide the outcome of judicial proceedings means having a voice in public affairs. It means—literally and legally—participating in due process of law. Under our Constitution, voters choose their representatives in the legislative and executive branches. Those representatives create and enforce laws. The president and senate then choose judges who interpret laws. Voters also are included in the jury pool, and they limit the power of judges (and directly exercise the sovereignty of the people) by determining the facts and deciding guilt.
As a result, Amendment XIV, emphasizes that “the right to vote at any election for the choice of electors for President and Vice-President” or “Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof” cannot be “in any way abridged, except for participation in rebellion, or other crime.” Amendment XV and Amendment XIX emphasize that “[t]he right” to “vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude” or “on account of sex.” The First Amendment and Article VI also emphasize that any discrimination or prejudice imposed because of “religion” or “religious” views (matters of conscience) violates our Constitution.
All the foregoing emphasize that state and federal public servants do not and cannot have any power to dictate to us (sovereign citizens) how we exercise our own sovereignty over our own hearts, minds, bodies and souls as the Dobbs majority did. Under our Constitution, state and federal public servants have the power to regulate our exercise of our rights (our conduct) that would injure or infringe on the rights of other actual persons. They were not delegated any power (under any state or federal Constitution) to interfere with our conduct or our consciences as the Dobbs majority presumed to authorized. The Dobbs majority absurdly usurped powers we did not give them. They deceitfully pretend they had the power to empower state officials to violate our Constitution to defraud us of our most precious privileges and immunities.
The book that best helped me understand our Constitution was The Ideological Origins of the American Revolution (2017) (50th anniversary edition) by Bernard Bailyn. Bailyn’s Postscript emphasized a crucial concept: “The American Constitution is the final and climactic expression of the ideology of the American Revolution.” Bailyn clarified how the people who wrote and ratified the Constitution took care to remain true to the principles of the American Revolution and the Declaration of Independence. They consulted the documentation relevant to the Revolution exactly as true and honest originalists would (and as judges interpreting our Constitution must): to “reach back into the sources of the received tradition, confront the ancient, traditional fears” at “the heart of the ideological origins of the Revolution, and identify and reexamine the ancient formulations” to “reinterpret them” and “reapply them” and, most importantly, “bring them up to date.” That is what the Framers of the original Constitution did, as well as the Framers of the Bill of Rights and Amendments XIII, XIV, XV, XIX, XXIV and XXVI. The Originals at the time of the Founding, Reconstruction and women’s suffrage did not (as the fake originalists of the Dobbs majority did) merely recount prior history of conduct that clearly was contrary to our Constitution.
Crucial discussions about the Constitution started in 1787 and continued into 1790. The Constitution was signed on September 17, 1787 after three months of secret discussions in the Philadelphia Convention. After that, public discussions raged and enraged. The Constitution required ratification by nine state conventions, and that threshold was passed in June 1788. But the last of the final four did not ratify until May 1790.
James Wilson, Speech to the Pennsylvania Convention, Nov. 26, 1787, 1 Collected Works of James Wilson 161. For associated quotes from Wilson about sovereignty see Part VI.
Adams was wrong in thinking (as a very old man who had not physically fought in the war) that the “War” was “no part of the Revolution.” He was right that radically changing people’s thoughts and beliefs was a revolution. Even so, thinking and speaking, alone, do not alter or abolish despotic governments or institute governments to effect the happiness of the people. The Revolutionary War was essential to the American Revolution, as well as to America’s second revolution. Without the fighting, the writing would have been almost irrelevant. It would have amounted to mere theory, mere speculation, about merely potential best practices—like Montesquieu living under a viciously oppressive monarchy in France while speculating about the virtues and operation of a republic decades before the American Revolution.
The people who suffered and sacrificed much to make our revolutions successful (including Washington, Hamilton, Madison, John Bingham and President Lincoln) saw war for what it was. In President Lincoln’s Gettysburg Address, he naturally spoke of “this ground” and these “brave,” but he necessarily meant more, i.e., the grounds of our nation (its foundation) and the brave of every generation and gender who have struggled and sacrificed for the sake of our Constitution and us:
in a larger sense, we can not dedicate—we can not consecrate—we can not hallow—this ground. The brave [combatants], living and dead, who struggled [and sacrificed], have consecrated it, far above our poor power to add or detract. . . . It is for us the living, rather, to be dedicated here to the unfinished work which they who fought [for our Constitution] have thus far so nobly advanced. It is rather for us to be here dedicated to the great task remaining before us—that from [our] honored dead we take increased devotion to that cause for which they gave the last full measure of devotion—that we here highly resolve that these dead shall not have died in vain—that this nation, under God, shall have a new birth of freedom—and that government of the people, by the people, for the people, shall not perish from the earth.