Sammy Alito’s draft opinion to overrule Roe vs. Wade argues, “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision including the one on which defenders of Roe…now chiefly rely – the Due Process Clause of the Fourteenth Amendment.”

God help us! And God Bless the Founding Fathers! The 1788 Constitutional Conventions of the states reveal the legislative intent and legislative history about enumerated and unenumerated rights and freedoms, according to James Madison. Madison was a complete, recognizable authority of the Constitution in 1788. In 1789 Madison wrote what became the Bill of Rights.

The Virginia Constitutional Convention is the most complete record. A Bill of Rights came up in June 1788. Opponents of the Constitution used every argument to block the paper: Should there be a constitutional ratification conditioned on a Bill of Rights being adopted? Or should there be ratification plus recommended supplementary amendments? Madison did not like either proposal. He disengaged ratification from conditions, and he diminished the value of the subsequent amendments.

Enumerated and unenumerated rights were hot topics, cooled by the best judge/justice in America and in the English speaking world. Edmund Pendleton knew the American people were the sovereign and that every freedom and right could not be enumerated – too many situations, too many people living over a expanded land of liberty. Pendleton recommended the negative: “Declare the principle as more safe than the Enumeration.”

James Madison did so in the Ninth Amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

Rights and freedoms enumerated in the Constitution stay with Americans, the sovereign. No Congress and not the Executive, and no Supreme Court justice can “deny or disparage” unenumerated rights “retained by the people.”

So boys and girls, study the 1788 Constitutional Conventions. Americans have enumerated and unenumerated rights. References follow:

10 Doc His of the Rat of the Constitution, Virginia, vol. 3, St His Soc 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, August 17, 1789, p. 783-784.

Next write another draft opinion and submit it to the sovereign, the American people, for their ratification.