Tag Archives: Supreme Court

DUMP DOBBS

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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.”

CONGRESS DECIDES VOTING RIGHTS

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Spring 2026 the Supreme Court will decide a Voting Rights case, Louisiana vs. Callais, and in its ruling the Supreme Court is likely to disregard American history, American experience and the express language of the Fourteenth and Fifteenth amendments, when the court rules that southern states can create white congressional districts to the disadvantage of citizens of color.  Other Amendments may come into play. Voting Rights encompasses gerrymandering, racial unequal representation, eliminating representatives of persons of color, sex (women) and youth (eighteen year old voting), imposing conditions to vote, impeding voting registration, allowing individual states to interfere during elections, corruption and many other activities and deeds which encumber the access of Americans to the ballot box. 

The Supreme Court has explicit Constitutional restraints, prohibiting it from ruling on any voting rights issue. Congress sets the rules. The Constitution makes voting rights, political issues, not legal issues, which Constitutional Amendments give entirely to Congress:

The Fifteenth Amendment, section 2, reads: The Congress shall have power to enforce, by appropriate legislation, the provisions of this article. (1870)

The Nineteenth Amendment reads in part: Congress shall have power to enforce this article by appropriate legislation. (1920)

The Twenty-Third Amendment, section 2, reads: The Congress shall have power to enforce this article by appropriate legislation. (1961)

The Twenty-Sixth Amendment, section 2, reads: The Congress shall have power to enforce this article by appropriate legislation. (1970)

Each of these Amendments changes the Constitution of 1787 which originally left voting rights to the states and the Courts.. Since the Constitution was ratified, Americans adopted and advanced these Amendments to “form a more perfect union.”

When Congress makes legislative choices, founded on facts and opinions about American society, it sets the rules on voting. Under Article Three of the Constitution the Supreme Court does not carry out those legislative functions when deciding voting rights laws. It has no power; voting rights do not come within judicial processes for judicial review.. The Supreme Court likes to say nonjustiability. Nor do voting rights come within the purview of any other inferior legislative body or court. Each court must follow Congressional Acts and its legislative history. Hence, the United States Supreme Court is unable to interpret the Voting Rights Act contrary its provisions and to the words of the Fifteenth Amendment.

Indeed, the Supreme Court must defer to Congressional legislation and enforce the Act favoring its legality and legitimacy from every inference and implication. The Supreme Court no longer has the ability to interpret legal issues of equal protection, states rights, or privileges and immunities, or other legal theories to be decided by a court. INSTEAD, each case involving the Voting Rights Act becomes a matter of Constitutional construction, and the only remedy action of any person has are legislative remedies in Congress.

The Rules of Construction include (1) reading and comprehending all words of each amendment to give each of them the greatest effect. (2)  Words, provisions and rules which add to governmental powers must be read in conformity with already present words, in concert with such powers in the original. And (3) provisions and rules that are contrary to or which do to meet the prescriptions of the amendment are superseded, removed and replaced. (4) An amendment may cause a reconstitution of Presidential powers under Article Two.

In 1789 James Madison attempted to eliminate the third general rule in Congress. He proposed interlacing each amendment into the Constitution in the area where it changed the Constitution. Contrary words would be deleted. Annals of Congress, August 13, 1789. Madison’s rational came from the experience of Virginia where a Constitution and Supplemental Amendments presented difficulties. Selby, John The Revolution in Virginia, The Colonial Williamsburg Foundation, Williamburg, 1789, p. 103-104. The First Congress failed to adopt Madison’s approach to amending the Constitution.

To analyze the effect of an amendment, the court should compare facts, circumstances and situations before the amendment to those after the amendment. Along with the Fifteenth Amendment the effect of the Fourteenth Amendment (1868) comes into play. Again the Amendment provides Congress has plenary powers, and the States have lost powers and authority to perform or do an array of deeds and acts against their own residents after 1869: The Bill of Rights is extended to residents of each state. Residents have equal protection rights, which belongs to individual human beings. Due Process and rights to jury trials are guaranteed. And the right to vote and equal representation are civl rights. And a state can be penalized if a state legislature bars targeted residents from voting or from gaining full representation which acts might include gerrymandering, Section 2, Fourteenth Amendment:

But where the right to vote at any election for the choice of

electors, for President and Vice-President, the Executive

and Judicial officers of a State, or the members of the 

Legislature of such State, is denied to any of the male

inhabitants of such State, being twenty-one years of age,

abridged, except for participation in rebellion, or other 

crime, the basis of representation there shall be reduced

in the proportion which the number of such male citizens

shall bear to the whole number of male citizens twenty-

one years of age in such State.  

Americans should observe the powers and authority of each state are greatly diminished. Every right, power, freedom and immunity is held by residents, each a citizen of the United States. Those rights, powers, freedoms and immunities are not States Rights, presumably existing before the Civil War. 

That issue raises old claims and arguments about States Rights, see the Kentucky Revolutions and Virginia Resolutions (both available online). Observe in its final form the Kentucky Resolutions are unlike the original which Thomas Jefferson gave to Wilson Cary Nichols for delivery to North Carolina in 1798. In the Report of 1800 James Madison responded to the opposition to States Rights in an analysis which is incomplete. The Fourteenth Amendment wiped away all States Rights issues. Today, residents, not the State, may bring lawsuits, individually or collectively. A State itself can petition Congress or it can contact its Representatives and Senators. 

The Fourteenth Amendment and all Voting Rights Amendments come from American experience, the Civil War. Today, Americans owe a debt to the 642,427 Union soldiers who were casualties of that War to save the Union, the Constitution and its framework. Thereupon, the Constitutional Amendments and the Voting Rights Acts should be given full force and effect.

Distrusting Supreme Court Justices comes from long and familiar American experiences. Thomas Jefferson warned his friend, James Madison, about wild, ill-balanced, unlearned, unelected justices with life-time appointments who would make political decisions and undermine or destroy the Constitution. While the Constitution was being argued and ratified in state conventions in 1788, other Americans gave the same or similar opinions. Fearful an active debate over the Supreme Court would derail the Constitution Ratifying conventions, Madison buried the best of The-Supreme-Court-Is-Dangerous essays, Brutus, so they were not collected and printed until 1971. PJM, vol. 10, Uni. Chi, Chicago, 1977, p. 200, note 4, citing William Jeffery Jr., University of Cincinnati Law Review XL, 1971, p. 665-777; 13 Doc His of the Rat of the Constitution, Commentaries, Vol. 1, St. His Soc of WS, Madison, 1981, p. 347, the New York Brutus should not be confused with Bruti from other states e.g Virginia. 

First-hand Americans have suffered from reckless, ignorant, bigoted, stupid justices using Supreme Court opinions to make political decisions and to force judicially-created law on Americans. Roger Taney, slaveowner of Maryland and Chief Justice of the United States, wrote Dred Scott v. Sandford (1857) 60 U.S. 393, wherein that Chief Justice wantonly and recklessly expressed hatreds, biases and prejudices through hundreds of pages of the official reports. Dred Scott is the worst opinion the Supreme Court has ever published..

By breaching the Separation of Powers in Dred Scott, Taney wrote: Slaves were property to be moved anywhere within the United States without a change of legal standing; slaves, and perhaps freed African-Americans, were not citizens of the United States (hence being born in the United States now makes one a citizen); slaves were not human beings, they were property; slaves had no protection under the Constitution. Congress itself never had Constitutional authority to control slavery or control its spread into territories. Thereby Slavery could not be barred from any Territory or possession of the United States.

Taney was wrong about no Congressional powers to control slavery and limit it. In August 1789 James Madison had the first congress ratify the Northwest Ordinances which prevented slavery in the Northwest Territories. President George Washington signed that statute.  

The Dred Scott opinion helped bring on the Civil War (1861-1865). After the War, Congress overruled the Dred Scott case by passing the 1865 Thirteenth Amendment, forbidding involuntarily servitude, and in 1868, the Fourteenth Amendment, forbidding state interference with all rights and freedoms enjoyed by Americans throughout each of the United States, and the Fifteenth Amendment. Each of these Amendments reaffirms distrust of Supreme Court Justices by moving powers, authority and jurisdiction to Congress: Congress shall have power to enforce this article by appropriate legislation.

Replacing the collective thinking of Congress and the President with that of a judicial majority, the Supreme Court Justices, today, advocate a return to the glory years of Roger Taney.  In a recent voting rights case in 2025 the Supreme Court asked on March 2, 2023 for further briefing to consider a legal theory – Independent State Legislative Doctrine. Does the Independent State Legislature Doctrine remotely sound like it complies with restrictions in Amendments 14, 15, 19, 23 and 26, above, giving power only to Congress? NO!. The Supreme Court was acting as a legislature, breaching the Separation of Powers in the Constitution, using wishes, biases, prejudices, ignorance, and the narrow thinking of non-elected Justices to move and to delegate Constitutional duties obligations to individual States. That Court considered the Independent State Legislative Doctrine was legitimate and wrote an opinion, rather than give it a curt per cerium send off denying it completely.

Today, the Supreme Court in Louisiana vs. Callois is wondering whether to eliminate language of race and color from the Fifteenth Amendment, plus completely ignore instructions of paragraph 2 of that Amendment. 

However any Supreme Court opinion about Voting Rights should be 9-0 in favor of the existing the Voting Rights Act passed by Congress.The Court should make all inferences in favor of the Constitutionality of Voting Rights Act and overrule all contrary prior decisions. Thereby, the Supreme Court will take a lesson from Thomas Jefferson and other founding fathers and stop Judicial Tyranny in the United States of America. Thereafter, integrity can begin to return to the Supreme Court..

SUPREME COURT FOLLY – THE RIGHT TO PRIVACY

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SUPREME COURT FOLLY – The Right to Privacy

A criminal defendant has claimed his cell phone, indicating the approximate location where he is, should be protected under his right to privacy pursuant to the United States Constitution. 
Despite the dubiousness of this claim of privacy, the Supreme Court luggards might approach this claim and case in their traditional way, citing off-point cases to interpret the Fourth Amendment and relying on antiquated sources from the Ivy League – the Brandeis/Warren Law Review, 4 Harvard Law Review 184 (1890).

The Fourth Amendment reads,

The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated and no Warrants shall issue but upon probable cause, supported by Oath or Affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Fourth Amendment suggests guidelines, if the information sought is not public, or is using a public conveyance or utility. Once activities, thoughts, or actions come within the public’s scrutiny or knowledge, a citizen loses many protections of the Fourth Amendment. When in public there is no reasonable expectation of privacy. If public, what is an “unreasonable search and seizure” becomes a much larger group of behaviors, acts and manifestations.

A proper analysis of the Right to Privacy is not found in the Fourth Amendment. It is found in the Ninth Amendment of the United States Constitution:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

The Ninth Amendment infers the proper relationship between the American people and the national government. The Constitution is a grant of powers to the national government from the American people. Enumerated rights are listed, but it is an incomplete list. The First Congress and the writers of the Constitution did not want to construe, identify and enumerate all rights they could conceive. Thereafter, a right not listed could not be used by individuals against the national government. [This point was made clear in the Virginia Ratifying Convention, circa June 20, 1788, and related correspondence of James Madison, Edmund Pendleton and other delegates.)

What is the Right to Privacy? It was unknown during the country’s founding. However today, all Americans rely on it but have vague ideas of what it means, what it covers and its full extent. The right to privacy, or something like it, appears in Constitutions and in statutes of other countries. Those sources can help define and describe, but any constructed right of the American people must be interpreted and consistent with all other sections and amendments of the Constitution, plus state and federal statutes.

In 1776 James Madison and George Mason, the primary writer of the Virginia State Constitution, made Freedom of Religion a basic right in the Virginia document. However, the state government taxed Virginians to pay the salaries and other expenses of church personnel and of churches. Madison and his constituents believed this government involvement favored certain sects over newer sects. In 1785 in the House of Burgesses Madison proposed passing an Establishment Clause for Virginia. Madison desired Freedom of Conscious – believe and think what you want. Do not expect Virginia to favor and support your beliefs. Madison set forth America criteria. His efforts were successful by 1786. Thereafter, churches (Episcopalians, Baptists, Methodists, Quakerism, Judaism ), on one hand, and Virginia, on the other hand, were separate.

In Memorial and Remonstrance Against Religious Assessments (commonly known as Remonstrance) Madison construed the argument for the Establishment Clause in Virginia and for the first Right listed in the First Amendment of the United States Constitution: “Congress shall make no law respecting an establishment of religion…” The Remonstrance is the only writing where Madison, a Constitutional master unique in all of history of this country or other countries, demonstrates in a flush of pure reason how to construct a Constitutional liberty or right. Madison sufficiently separates the Establishment of Religion from the Free Exercise of Religion.

No American has defined and demarcated any other individual or civic right so clearly and fully as Madison. The Remonstrance presents guidelines, arguments and analyses that Americans should follow regarding any right not enumerated under the Constitution i.e. the Ninth Amendment. The Right to Privacy, as an unenumerated Right under the Ninth Amendment, should require the justices of the Supreme Court begin the construction of that liberty.

What is privacy? What is public? What is semi-private? What is available to the public for a price? What is semi-public? The Fourth Amendment provides narrow guidelines – security in homes and of persons when there is no warrant. But when an individual is abroad – out-of-doors – everything changes. When making a telephone call on a network, the cops cannot listen without a warrants, but indivuduals sometimes listen in. With a cell phone every American can be located, approximately. Is an individual’s location private when he is out in public?  Perhaps in a public restroom although he can be arrested from that location.

The First Amendment – the right to free speech and the right to a free press – have greatly limited the right to privacy torts in civil law. There are dozens of exceptions and excuses from the tort. Again, the Brandeis/Warren article, cited above, urges strict guidelines, which no longer fit the modern society America finds itself in.

Brandeis and Warren like Madison in the Remonstrance noted changes in society and use the current state of American society to define and delineate a liberty. Likewise, privacy today should discuss the commercial realities, benefits and demerits. Today’s case law reflects the move toward greater freedom of speech and the press; it disfavors privacy. Criminal law investigations, specially when documents, objects or speech is public, eliminates privacy.

Today, the collection of phone and cell tower data is not confined to law enforcement. Cell phone traffic and analyses allows providers to improve phone service. It lets cell phone makers improve phones and make their products more capable. And the gross data may let marketers provide goods and services where they are currently unavailable. Note when Samsung had issues of burning phones, it was imperative to contact and locate each of their phones and their owners, easily done because there was a customer list.

Most Americans believe this collection reasonable and beneficial to their society. Most information is available to non-government corporations and entities, businesses and enterprises without warrants, probable cause or reasonable suspicion. The investigation, investment and commerce flowing from data analyses makes life in America better.

If the data are misused, there may be violations of statutes. There are alternatives. If an American does not want to be located, approximately, turn off the phone designated to his name, and buy and use a burn phone. Note that phone purchase usually is monitored by cameras and memorialized by receipts – that investigation is not limited by an individual’s privacy rights. Note further an individual does to have to use credit cards or retail membership cards, where data including locations are made. Get off the grid; Americans can use cash which is anonymous.

Attempting to weave the Right to Privacy around a semi-public instrumenting like a cell phone use requires detailed analysis which is convoluted, complicated and cannot not be part of a Constitutional Right. Note the length of the two Amendments, cited above, no longer than 75 words apiece. Principles and exceptions for the right of privacy for criminals in cell phone use would be prolix, unreasonable and unworkable. There would be no precedents, only singular exceptions.

It is noteworthy that third party claims to a Right to Privacy on behalf of customers can be affected by the ruling of cellphone location privacy rights. The secondary rights of a third party to claim privacy on behalf of customers who are usually criminal suspects is flimsy. Law enforcement officials usually have the suspect’s cell phone and a warrant meeting all the requirements of the Fourth Amendment.

Corporate behaviors become more egregious when one realizes these corporations readily cooperate with foreign governments and provide access, information and account data accumulated from the customers in those countries. Yet they refuse to cooperate with the National government in criminal investigations.

CONFIRMING A SUPREME COURT JUSTICE

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Five conditions must occur if Neil Gorsuch is going to receive votes from Senate Democrats for a position on the Supreme Court:

1. Roll and smoke a joint. Remember to inhale.
2. Be photographed before congressional hearings hugging trees.
3. Adjust your world outlook to the dream of Earth when only one billion humans lived on                 it.
4. Tell Charles Schumer that you will order that the New York Giants must win the Super Bowl. That should likewise get you in with Democratic senators from nearby states.
5, Lie as easily as you can tell the truth.