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

The Dobbs majority's absurd pretense of focusing on the Constitution's text and new-found "interests" of state government

The Dobbs majority admitted, “our decision is not based on any view about when a State should regard prenatal life as having rights or legally cognizable interests.” Then they deceitfully pretended to be guided by the text of the Constitution:

The Constitution makes no express reference to a right to obtain an abortion, and therefore those who claim that it protects such a right must show that the right is somehow implicit in the constitutional text.

Roe, however, was remarkably loose in its treatment of the constitutional text.

The Dobbs majority clearly (merely) ignored our Constitution’s plain text and its plain meaning in and after the 1780’s. Many provisions proved clearly and compellingly that our Constitution protected only the rights of actual citizens and actual persons who at least were born somewhere, and it did not protect any rights of many people.

In 1787, the Preamble emphasized that the Constitution (and federal government) were proposed primarily to protect “the People.” Article IV secured “all Privileges and Immunities of Citizens.” To this day, Article II emphasizes that “No Person except a natural born Citizen” is “eligible to” be “President.”

Equally relevant and compelling is the fact that copious plain text of the original Constitution proved beyond any possible doubt that our Constitution, itself (and even more so our history and tradition) permitted people to treat other actual people as essentially property. In truth, the Constitution permitted people to treat actual people much worse than they treated even mere property.

Article I expressly distinguished between “free Persons, including those bound to Service for a Term of Years” and “all other Persons.” Such “other Persons” clearly included people who had been enslaved by other people.

Article I also expressly permitted the “Importation of such Persons as any of the States now existing shall think proper.” Against many strenuous objections, the Constitution even protected “Importation” of “Persons” for 20 years. “Importation” of “Persons” could not “be prohibited by the Congress prior to the Year one thousand eight hundred and eight.” “Persons” clearly meant people being imported to be sold and enslaved by other people.

Article IV secured and enforced slavery with two provisions. One was called the Fugitive Slave Clause: “No Person held to Service or Labour in one State, under the Laws thereof, escaping into another” state can be free; moreover, such “Person” must “be delivered up” (to be returned to a slave state) “on Claim of the Party to whom such Service or Labour may be due.”

Under our Constitution, slaveholders even could compel free states to surrender free people who had entered a slave state and helped a slave escape: “A Person” who was merely “charged in any State” with “Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.” That really happened. See, e.g., Kentucky v. Dennison, 65 U.S. 66 (1861).

When the Constitution was intended to protect progeny, it did so expressly, as in Article III: “no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.”

In 1791, much of the Bill of Rights (the First, Second, Fourth, Ninth and Tenth Amendments) (echoing the Preamble) specifically protected rights of “the people.” The Fourth Amendment was especially relevant to the right that the Dobbs majority pretended they simply could not see. It clearly emphasized “[t]he right of the people to be secure in their persons.” The Fifth Amendment emphatically protected only a “person” and every “person.”

In December 1865, the Thirteenth Amendment was ratified making any form of “involuntary servitude” unconstitutional “except as a punishment for crime whereof the party shall have been duly convicted.” Bearing a child for nine months or raising a child (for some 18 years) is naturally seen a (and it actually is) a form of servitude.

In 1868, the Fourteenth Amendment emphasized that the Constitution protects only “citizens” and “persons.” It further clarified that “persons” did not include anyone who was not “born” somewhere. Only “persons born” in the U.S. or born elsewhere and “naturalized” in the U.S. can be “citizens.” It is very common knowledge (even among those who are not citizens) that a fetus is not a citizen. The Fourteenth Amendment emphatically protected “the privileges or immunities of citizens” and protected any “person” from being deprived of “life, liberty, or property, without due process of law” or denying any “person” truly “equal protection of the laws.”

In 1920, with the Nineteenth Amendment, our Constitution finally specifically acknowledged that women were fully first-class citizens (fully “persons” and “citizens” (fully part of “the people”) as those terms were used in the Constitution).

Copious plain text and plain meaning of the Constitution protects citizens and persons, including specifically, women. It is impossible to justify prejudicing the rights of women by favoring something not even considered a person by the people who wrote or ratified the original Constitution or the Bill of Rights or the Fourteenth Amendment—or even by Americans, generally, from the 1780’s until well after 1920.

The Dobbs majority also contended that they could give state governments the power to force women to bear fetuses to term because state officials (finally) have found “interests” in ensuring “respect for and preservation” of “life at all stages,” “the protection of” women’s “health and safety; the elimination of particularly gruesome or barbaric” treatment of women and fetuses and “the mitigation” of “pain.” Those are legitimate interests when considering how to protect one person from another person. Here, however, women are deciding (and must be allowed to decide) such issues about themselves for themselves.

Moreover, those very concerns were shockingly absent from the thinking behind, and conduct because of, the plain text of the Constitution (above) throughout much U.S. “history” and “tradition” with respect to massive numbers of people. George Mason’s vehement opposition to clause of the Constitution that protected importation of slaves indicated the opposition it faced even among slaveowners: “such a trade is diabolical” and “disgraceful to mankind” and “a most disgraceful thing to America. I cannot express my detestation of it.”

To use the words of the Dobbs majority, the “procedures” of importation, alone, were “gruesome” and “barbaric” and evinced complete absence of concern for “the mitigation” of “pain” or “health” or “safety” or “respect for and preservation” of “life” of multitudes of men, women and children. Estimates regarding importation, alone, are dispositive: “slave traders transported nearly 12.5 million enslaved Africans to the Americas” but only “approximately 10.7 million” arrived “alive.”

The words of the Dobbs majority (“gruesome” and “barbaric” and paucity of concern for “the mitigation” of “pain” or “health” or “safety” or “respect for and preservation” of “life”) apply equally to the outrageous costs that southern states imposed on their own populations (and on other Americans) to purport to defend the “rights” of slaveowners, i.e., their “right” to treat huge populations of people as essentially property. Massive numbers of Americans were killed, maimed or otherwise injured in the Civil War. Even so, there is a striking coincidence between those southern states and the southern states now (again) dictating to people what they can or cannot do with their own bodies.