The United States Supreme Court has gone beyond the bounds of  Article Three of the Constitution in Dobbs vs. Jackson Women’s Health Organization (2022) 597 U.S. 215. Thereby the Court has ignored Amendments to the Constitution, ignored the legislative history of the Constitution and breached the Separation of Powers set forth in the Constitution.

The Constitution makes the American people the sovereign, not the states, which have no powers over their residents not granted to states by “We the people.” The states can only exercise policing powers within Constitutional guidelines. Post Civil War amendments of the Constitution state the individual states had no authority to define or interfere with freedoms and rights of American citizens. The Thirteenth Amendment and subsequent amendments provide many times:Congress shall have power to enforce this article by appropriate legislation. Neither the Courts nor the states have power to define or delineate unenumerated rights retained by and held by THE PEOPLE. 

The status of future generations came up in the 1787 Philadelphia Convention. It is well-recognized many delegates were well-educated and well-read, being the best lawyers and many were the most experienced legislators in the United States. They knew the laws regarding future generations because each state had adopted the statutes of Great Britain to limit the activities of their citizens. They knew Biblical law, from the LORD God, stating life begins with the first breath: “And the LORD God formed man of the dust of the ground and breathed into his nostrils the breath of life; and man became a living soul.” Genesis 2:7. Thus, there was no debate of when life and the human soul began, with the first breathe. The Bible explains the origin of man as God brought human beings to the earth — the same God that gave Moses the Ten Commandments — the same God who is the father of Jesus. 

For three centuries and longer the laws of Britain did not recognize a child in the womb as a human being. They were expectancies, who became human with the first breath at birth. Men of the 1787 Convention chose to follow Genesis and not to change those statutes of expectancies.

The reasons to have a child in the womb be an expectancy multiply: Stop tax evasion, prevent confusion of land titles, prohibit restrictions of land sales and easier management and oversight of trusts. Eventually the British Parliament in the seventeenth century formulated the Rule Against Perpetuities to prevent fraud and abuses by citizens. Every law student in America, and thereby every attorney, judge and justice remembers encountering this collection of Anglo/American jurisprudence in law courses of real property, future interests, probate and trusts, and generally disliking those subjects.

The Dobbs unilaterally changed and completely disregarded the Old Testament, the LORD God’s making of man and delivering the human soul starts with the first breath from God. Making expectancies of unborn, non-breathing human beings (no definition in law) with Constitutional rights is religiously and legally untenable. Dobbs and more recent opinions are so poorly written, reasoned and analyzed that the Supreme Court and other Courts have wantonly omitted the Biblical authorities and centuries of controlling authorities in Anglo/American jurisprudence, rendering them a mere fillip of unlearned hands.  

Answers are found in the 1788 state conventions ratifying the Constitution. Those are the legislative history of the Constitution, not the Federalist Papers which are mere newspaper articles informing the residents of New York about the Constitution.

The United States Supreme Court has gone beyond the bounds of its jurisdiction under Article Three of the Constitution in Dobbs. The Court has disregarded whether a right exists is not a determination that can be made under Article Three of the Constitution. Whether a Right exists is a Political Question, not a legal question under Article 3. Article 1 of the Constitution sets forth the frame work by which Americans exercise their sovereignty. The American people can also enumerate Constitutional rights and freedoms through super majority amendments to the Constitution.(Article 5 ) 

The Founding Fathers determined the issues in Dobbs by identifying them as unenumerated rights. (Virginia State Constitutional Convention, June 24,1788). Enumerated and unenumerated rights were hot topics, cooled by Edmund Pendleton, the best judge/justice in America and in the English speaking world. The American people were the sovereign but every right could not be enumerated – too many situations, too many people living in a expanded land of liberty. Pendleton recommended, “Declare the principle as more safe than the Enumeration.” James Madison did so in the Ninth Amendment of the Bill of Rights: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Rights not enumerated in the Constitution remain with the American people. No Congress, without going through the amending process, and no State, and no Executive, and certainly no Supreme Court justice can “deny or disparage” unenumerated rights “retained by the people.” Unenumerated rights are political questions to be decided by the American people. 

References supporting the enumerated/unenumerated Constitutional rights follow: 10 Documentary History of the Ratification of the Constitution, Virginia, vol. 3, State Historical Society of Wisconsin, Madison, 1993, June 24, 1788, p. 1520, Madison at ratifying convention: “If an enumeration be made of our rights, will it not be implied that everything omitted, is given to the General Government? Has not the Honorable Gentleman [Patrick Henry] himself, admitted, that an imperfect enumeration is dangerous?” David John Mays, Ed., The Letters and Papers of Edmund Pendleton, Uni. Press of Virginia, Char., 1967, vol. 2, p. 533, Pendleton to Richard Henry Lee; Oliver Ellsworth, Landholder VI, 3 Doc His of the Rat of the Const, Connecticut, St His Soc. of Ws, Madison, 1978, December 10, 1787, p. 481; PJM, vol. 10, Uni. Chi, Chicago, 1977, p. 315, 317, George Lee Tuberville to JM, December 11, 1787, make sure enumerated rights not listed not “surrendered.” House Annals RE: Bill of Rights debates, August 17, 1789, p. 783-784.    

The Dobbs court in its ignorance intentionally disregarded the Ninth Amendment, and relied on the Tenth Amendment, as though the states have general sovereignty, all the while ignoring (1) the final four words of the Tenth Amendment: …or to the people, and ignoring (2) the effect of post-Civil War Amendments eliminating powers of individual States to restrict rights of Americans.The failure of research, understanding and writing in Dobbs is appalling. 

Pretending to overlook the Ninth Amendment and failing to discuss its controlling effect is beyond pathetic. Any parent would be justified in whipping a child who claimed unenumerated rights are bogus and factitious. Yet the Dobbs Court, purportedly representing the most elevated legal minds that Harvard and Yale Law Schools can produce, wrote, “…the Constitution makes no reference to abortion, and no such right is implicitly protected by any Constitutional provision.”.”   

It is easy say that abortion is not found in the Constitution, just as the right to privacy is not there. Related ninth Amendment rights affected by Dobbs flow beyond abortion: Male/female relationships, families, confidentiality of marital communications, marital privileges, making medical choices, making financial choices, planning a life together or live separately, and on, and on and on, so many, they cannot be listed. Those rights are unidentified and unenumerated under the Ninth Amendment, retained by the people.

Yet, the Supreme Court ruled, if it’s not enumerated in the Constitution, it does not exist, while overlooking the Virginia Constitutional Convention: If an enumeration be made of our rights, will it not be implied that everything omitted, is given to the General Government? The existence of unenumerated rights protected by the Constitution have been long understood by the American people. Loretta Lynn wrote The Pill and sang it in the early 1960s:

All these years I’ve stayed at home,

while you’ve had your fun.

And every year that’s gone by, 

Another baby’s come.

There’s gonna be some changes made 

right here on nursery hill. 

you’ve set this chicken your last time,

‘cause now I’ve got the pill.

That is the current public opinion, which now supports broader establishment of unenumerated rights in this area of personal health, family matters, societal-well being, child upbringing and community welfare. In lower Federal courts and in states today are cases using the Dobbs opinion to restrict and to eliminate these unenumerated rights of Americans of the Ninth Amendment. These court rulings should stop.

The Supreme Court has authority to control those cases by (1) lifting impositions and impediments made by the lower courts, or (2) to overrule Dobbs and move all cases to Supreme Court jurisdiction. (3) There, the nine people can easily write an opinion: “We forgot about the Ninth Amendment. Sorry, Loretta. The unenumerated rights of Americans remain undisturbed. Dobbs is overruled. The End.”