Warm Southern Breeze

"… there is no such thing as nothing."

Concerning the Supreme Court, Truth is Stranger than Fiction

Posted by Warm Southern Breeze on Friday, September 2, 2022

Who Wrote This?

“…the woman contemplating a first trimester abortion is given absolute and nonreviewable authority over the future of the fetus.”

. . .

“Roe took from state lawmakers the authority to make this choice and gave it to the pregnant woman.”

READ THAT AGAIN.

“…the woman contemplating a first trimester abortion is given absolute and nonreviewable authority over the future of the fetus.”

-and-

“Roe took from state lawmakers the authority to make this choice and gave it to the pregnant woman.”

Imagine the utterly unmitigated gall, total temerity, and absolute audacity of anyone who would take “from state lawmakers the authority,” the “absolute and nonreviewable authority” — otherwise known as rights under law — and give it to We The People… and to women, at that! Such brazenness! (The reader should detect STRONG sarcasm.)

Again, who wrote that?

Here are some identifying details.

It was authored by a 35-year-old Yale Law School graduate who had been practicing law for 10 years, and on May 30, 1985, as Assistant to Rex Edwin Lee, then Solicitor General of the United States, authored a memorandum to him about two cases they were working upon, which would be argued before the Supreme Court of the United States (SCOTUS).

[NOTE: As the 4th most ranking member of the Department of Justice {DOJ’s Organizational Chart states, “Below the Deputy Attorney General, from left to right, top to bottom, are: Solicitor General; Associate Attorney General“}, “the job of the Office of the Solicitor General is to supervise and conduct government litigation in the United States Supreme Court. The Solicitor General determines the cases in which Supreme Court review will be sought by the government and the positions the government will take before the Court. The Office’s staff attorneys, Deputy Solicitors General and Assistants to the Solicitor General, participate in preparing the petitions, briefs, and other papers filed by the government in the Supreme Court. The Solicitor General conducts the oral arguments before the Supreme Court. Those cases not argued by the Solicitor General personally are assigned either to an Assistant to the Solicitor General or to another government attorney. The vast majority of government cases are argued by the Solicitor General or one of the office attorneys.”]

Here’s an additional clue:
The cases were Thornburgh v. American College of Obstetricians and Gynecologists, No. 84-495; and Diamond v. Charles, No. 84-1379.

Still haven’t an idea?

If you guessed anyone other than Samuel A. Alito, Jr., you would be wrong.

From 1981-’85, Alito compiled an impressive record at the DOJ, and was 10 for 12 of the cases he argued before the SCOTUS. In one of the cases he argued and lost, Federal Communications Commission v. League of Women Voters of California (1984), then aged 33 on January 16, 1984, he only had 2 days to prepare, and was pinch hitting for the renowned constitutional scholar and superlative oral advocate, Deputy Solicitor General Paul M. Bator (1929-1989), following a death in his family.

The other case Alito lost before the SCOTUS was Belknap, Inc. v. Hale, Docket no.81-1966, Argued January 11, 1983, and Decided June 30, 1983, which was a labor relations case argued by Cecil Davenport on behalf of Respondents, while Alito argued on behalf of the National Labor Relations Board, in an amicus curiae (friend of the court) capacity. Mr. Davenport, who described himself as “an ordinary attorney out in the sticks” of Louisville, KY, had words of praise for Mr. Alito’s legal skill, saying, He exhibited even then a remarkable understanding of the law. I would like to say to you that it [Davenport’s victory] was all because I was brilliant, but it wasn’t so. He was picked to argue that case cold. He was a professional, and he came in solely to argue the case before the Supreme Court. I had the advantage of arguing it from Day 1.”

None of this is to say that now-Justice Alito is bad, or in some way a malign human being because of his ruling in Dobbs v. Jackson Women’s Health Organization (19-1392), nor is it to assert that he in any way is incompetent, but rather, though he is masterfully skilled in legal acumen, and in oral argument, the basis, the justification of the legal foundation of his opposition to Roe v. Wade as he wrote then, and as he wrote most recently, is fundamentally flawed, for in it, he completely ignores the Ninth Amendment.

The Dobbs decision public release on the Supreme Court’s website.
[see: https://www.SupremeCourt.gov/opinions/21pdf/19-1392_6j37.pdf],

The Ninth Amendment states in toto that,

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

In the history of American jurisprudence, the Ninth Amendment has largely been ignored, per se. At least insofar as it has been in the Roberts-led court which is compiling an impressive track record of overturning settled law and precedent. History is replete with rulings, some unjust, though most all historical, which have changed the nation. Many of the ones handed down from upon high in the last 20, or so, years, have been to the detriment of freedom, of rights, and of liberty. Liberty is equated with freedom, and the two are almost (for all practical purposes) one-and-the-same.

Here are three sources notating landmark SCOTUS cases:
1.) https://www.uscourts.gov/about-federal-courts/educational-resources/supreme-court-landmarks
2.) https://www.americanbar.org/groups/public_education/programs/constitution_day/landmark-cases/
3.) https://www.usatoday.com/story/news/politics/2015/06/26/supreme-court-cases-history/29185891/

Rather, Alito, and the 5 other concurring Justices, knowing full well that the Constitution does NOT mention many things, such as a right to freedom of travel/movement; a right to breathe clean air & drink pure water; a right to safe medications; a right to purity in foods and cosmetics; a right to decide either home school or public education; a right to own animals; a right to become a parent; a right to bear and/or raise children; a right to be left alone, a right to be free from fear and harm; a right to engage in business, commerce & trade, etc. None of those rights are enumerated in the Constitution. A right may be expressed essentially as being a freedom to choose. There is a fascinating perspective on rights, which is that the Constitution does not “give” rights, per se, but rather, restricts the government from taking rights or holding the citizens to laws other than those outlined in the Constitution. As one of our founding documents states,

“We hold these truths to be self-evident, that all men are created equal, that they are endowed, by their Creator, with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.

“That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or abolish it, and to institute new Government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

“Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object, evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”

The reader should immediately recognize the writing of Thomas Jefferson as the Preamble to the Declaration of Independence.

“…they are endowed, by their Creator, with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.” One needn’t be a religious adherent to acknowledge that rights emanate from outside of our existence. Birds are free. Animals are free. From where did they obtain such broad, all-encompassing liberty? What was its source?

Just as much as freedom and liberty are unified, so are rights and liberty similarly hand-in-hand. So we see then, that liberty, rights, and freedom are inextricably intertwined, so much as to be inseparable. In his essay “Two Concepts Of Liberty,” from Four Essays on Liberty, Oxford University Press, 1969, Isaiah Berlin wrote that freedom and liberty are inseparable, and are essentially one-and-the-same, and observed rather succinctly that one is “said to be free to the degree to which no man or body of men interferes with [another’s] activity,” and that “if [anyone is] prevented by others from doing what [they] could otherwise do, [they are] to that degree unfree.”

In that same essay, Berlin wrote that one lacks liberty or freedom “only if they are prevented from attaining a goal by human beings,” and noted further by clarifying and differentiating that “mere incapacity to attain a goal is not lack of freedom.”

Berlin stated quite simply that “to coerce a man is to deprive him of freedom,” and by their ruling in Dobbs, the SCOTUS has coerced not only women, but worse, have co-opted the power of law to do so. Eager to shape America into their private, personal vision of it, the Roberts-led court is an activist court, and no serious observer of it, or of the law, can say otherwise.

Alito authored the opinion of the court, and on page 2, 1st paragraph, 1st sentence, the very first thing stated that they set out to do, was to determine if there was a “standard that the Court’s cases have used to determine whether the Fourteenth Amendment’s reference to “liberty” protects a particular right.”

The 14th Amendment in pertinent part reads, “…nor shall any State deprive any person of life, liberty, or property, without due process of law…” Led by Alito, the 6 radicals set out to take exception to the word “liberty” in the 14th Amendment, and finding none, they quickly rendered their decision: “The Constitution makes no express reference to a right to obtain an abortion.”

They knew damn well that it didn’t, and are merely playing “silly little reindeer games” by pretending to “cite” existing law which are cases that tend in their direction. In other words, they parse words to enable and license themselves to pick and choose cases that support their personal opinion — not law; not liberty; not freedom — in essence, to enable them to rule by coercion.

The word “coerce” derived c.mid-15th century meaning to “restrain or constrain by force of law or authority,” and was derived from the Old French word “cohercier,” which came from the Latin word “coercere,” meaning “to control, restrain, shut up together.” And the related word “coercion” emerged in the early 15th century from, “cohercioun” meaning “compulsion, forcible constraint,” and from Old French “cohercion.” The venerable, highly-respected, universally authoritative Oxford English Dictionary writes this about the word “coercion”: “As the word has had, in later times, a bad flavour, suggesting the application of force as a remedy, or its employment against the general sense of the community, it is now usually avoided by those who approve of the action in question.”

Control.

Force.

Alitos’ effrontery and utter rudeness to ignore the Ninth Amendment is stunning. He even deigns mention of it by writing “those rights guaranteed by the first eight Amendments to the Constitution and those rights deemed fundamental that are not mentioned anywhere in the Constitution.” Look at that clause just once more: “… and those rights deemed fundamental that are not mentioned anywhere in the Constitution. Though he refuses to call it by name, that is the Ninth Amendment in the flesh.

Specifically again, in the decision, on page 2, 1st paragraph, 1st sentence, he wrote, “First, the Court reviews the standard that the Court’s cases have used to determine whether the Fourteenth Amendment’s reference to “liberty” protects a particular right.”

It is at that point, the very opening salvo justifying his legal attack, where he errs.

Any cursory reading of the Constitution would show that he is correct, there is NO SPECIFICALLY-MENTIONED right, per se. It is an UNENUMERATED RIGHT.

And to be certain, the etymology of the word “enumerate” dates from the 1640s when it meant “to count; ascertain or tell over the number of;” hence, “mention in detail, recapitulate,” while in the early 15th century, when Middle English spelled it annumerate. Originally derived from the Latin enumeratus, being the past participle of enumerare “to reckon up, count over, enumerate,” it stemmed from numerare, meaning “to count, number,” and from numerus, meaning “number.” So, for the textualists, literalists, originalists, and other “ists” whose soothsaying attempts to conjure up the Spirit of 1776, along with other colonial ghosts from the cauldron of past discontents as they assay the Constitution to divine the “mysteries” of what the authors meant then, there is utterly NO equivocation on the meaning of the word “unenumerated.”

It means not counted. Period.

And by logical extension, if it’s not counted, it is most definitely not mentioned.

Alito and the Other 5 just completely gloss over that matter, hardly even giving it a mention. In fact, in the entire 213 pages of their ruling from on high, the word “ninth,” as in Ninth Amendment, appears EXACTLY 6 times.

Here they are, in context:

Mention #1: “Roe held that the abortion right is part of a right to privacy that springs from the First, Fourth, Fifth, Ninth, and Fourteenth Amendments.”
— overall document page 2, syllabus page 2, paragraph 1, 3rd sentence

Mention #2: “And that privacy right, Roe observed, had been found to spring from no fewer than five different constitutional provisions—the First, Fourth, Fifth, Ninth, and Fourteenth Amendments.”
— overall document page 19, opinion of the court page 9, section A1, 2nd paragraph, 3rd sentence

Mention #3: “One possibility was that the right was “founded . . . in the Ninth Amendment’s reservation of rights to the people.””
— overall document page 19, opinion of the court page 9, section A1, 3rd paragraph, 2nd sentence

Mention #4: “The Court’s words were as follows: “This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”
— overall document page 18, opinion of the court page 10, footnote 16

Mention #5: “See 410 U. S., at 154–155 (collecting cases decided between 1970 and 1973); C. Means, The Phoenix of Abortional Freedom: Is a Penumbral or Ninth-Amendment Right About To Arise From the Nineteenth-Century Legislative Ashes of a Fourteenth-Century Common-Law Liberty? 17 N. Y. L. Forum 335, 337–339 (1971) (Means II); C. Means, The Law of New York Concerning Abortion and the Status of the Foetus, 1664–1968: A Case of Cessation of Constitutionality, 14 N. Y. L. Forum 411 (1968) (Means I); Lucas 730.”
— overall document page 34, opinion of the court page 26, footnote 36

Mention #6: “Griswold v. Connecticut purported not to rely on the Due Process Clause, but rather reasoned “that specific guarantees in the Bill of Rights”—including rights enumerated in the First, Third, Fourth, Fifth, and Ninth Amendments—“have penumbras, formed by emanations,” that create “zones of privacy.””
— overall document page 119, Thomas, J. concurring, footnote asterisk page 3

Oddly enough, Justice Alito justifies the attack using the principle of stare decisis, writing that “A proper application of stare decisis, however, requires an assessment of the strength of the grounds on which Roe was based.”

Where he conjured up that mumbo jumbo is beyond me. Maybe it was in some boiling voodoo cauldron he took from a witch doctor.

That itself is a weak argument, to ask how “strong” the grounds upon which Roe was decided in order to undermine, or discredit it. The fact is, Alito and the 5 Other Justices prevaricated in their testimony, they perjured themselves while testifying under oath before the Senate Judiciary Committee in their confirmation hearings. But, artful dodgers as they are (they are lawyers, after all), they carefully crafted their responses ostensibly so as to not hint, nor convey their true position on a matter… just like politicians.

But this matter, the Dobbs ruling, is perhaps the proverbial icing on the cake with regard to American’s liberties and rights, simply because, no one dares trod that path, to be a pathfinder, or a path maker, and challenge the court on any matter upon the grounds that it violates their rights under the Ninth Amendment.

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