Where does the current Supreme Court majority stand on whether the US Constitution protects individual human liberty against encroachment by the State?
Where does the current Supreme Court majority stand on whether the US Constitution protects individual human liberty against encroachment by the State?
Timeline of case law on individual liberty; security of person; bodily integrity and legal definition of human being.
Posted May 19, 2022. Last updated June 13, 2022.
I’m working on a long report and analysis in response to a reader recommendation that I listen to Constitutional attorney Daniel Sheehan’s May 15, 2022 podcast interview by Kristina Borjesson.
Sheehan and Borjesson discussed the constitutionality of the proposed World Health Organization pandemic treaty and Supreme Court Justice Samuel Alito’s leaked Feb. 10, 2022 draft opinion in Dobbs v. Jackson Women's Health Organization in which — according to Sheehan — Alito denies that any individual right to privacy, bodily integrity, or liberty rights against government can be found in the US Constitution.
My current hypothesis is that the federal courts’ blocking of Constitutional claims based on individual rights as inalienable, Creator-endowed, natural/common-law and Constitutionally-protected for the last two years — combined with their silence on those issues when they have addressed other civil litigation on the government’s Covid-19 program and their misleadingly selective (cherry-picked, decontextualized) citations to precedential cases — are about to become an open, public statement that individual Constitutional civil rights either never existed at all, in their majority legal opinion, or if they once existed, have since been silently revoked.
I think the Supreme Court justices will make this move, through the final Dobbs decision to be released in June, because they are members of the global elite for whom the eradication of moral and legal principles of individual liberty and national sovereignty are essential preconditions for the establishment of centralized global governance controlled by and for the benefit of those same elites.
Just as centralization of federal power was essential for the post-Revolutionary War period elites to establish the United States government in a form controlled by and for the financial elites of that historical time period.
Same playbook, larger scale.
1791 - Ratification of Bill of Rights
Amendments to US Constitution to protect individual human beings from government tyranny, ratified 12/15/1791
First Amendment - Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Second Amendment - A well-regulated militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.
Third Amendment - No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.
Fourth Amendment - 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.
Fifth Amendment - No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.
Sixth Amendment - In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
Seventh Amendment - In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any court of the United States, than according to the rules of the common law.
Eighth Amendment - Excessive bail shall not be required nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Ninth Amendment - The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Tenth Amendment - The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Supreme Court cases, Constitutional amendments, related state cases and treatises
American Constitutional and judicial events related to moral and legal status of human beings in their relationship with government, with brief synopses, especially legal markers laid by SCOTUS in May 2020, January 2022 and February 2022.
1795/02/07 - Eleventh Amendment to US Constitution ratified:
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
1819 - Dartmouth College v. Woodward, 17 US 481. Private business corporations jointly owned by shareholders are legally distinct from public municipal corporations (towns) jointly owned and lived in by citizens. Jon C. Teaford, The Municipal Revolution in America: Origins of Modern Urban Government, 1650-1825 at 37 (1975):
“In 1819 in Dartmouth College v. Woodward, the U.S. Supreme Court introduced a distinction between the rights of a public corporation and a private one. The U.S. Constitution’s contract clause did not protect the political powers granted in the charter of a public corporation such as a municipality. State legislatures could, therefore, unilaterally amend or revoke municipal charters and strip a city of authority without the municipality’s consent. But the charter of a private corporation, such as a business enterprise or a privately endowed college, was an inviolate grant of property rights guaranteed by the nation’s Constitution." Became known as Dillon's Rule.
1865/12/06 - Thirteenth Amendment to US Constitution ratified:
Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
Section 2. Congress shall have power to enforce this article by appropriate legislation.
1868/07/09 - Fourteenth Amendment to US Constitution ratified:
Section 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws…
Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein 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.
Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
1868 - Judge John Forrest Dillon, Iowa Supreme Court/8th Circuit Court wrote:
"Municipal corporations owe their origin to, and derive their powers and rights wholly from, the legislature. It breathes into them the breath of life, without which they cannot exist. As it creates, so may it destroy. If it may destroy, it may abridge and control.”
1870/02/03 - Fifteenth Amendment to US Constitution ratified:
Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
Section 2. The Congress shall have power to enforce this article by appropriate legislation
1871 - Judge Thomas Cooley, Michigan Supreme Court, disagreed with Dillon. Cooley believed in an inherent human right to local self-determination, in line with the liberty and consent-to-government ideals of the Revolution, writing in 1871:
“Local government is a matter of absolute right; and the state cannot take it away.”
1872 - John Forrest Dillon, Treatise on law of municipal corporations
1879 - Thomas Cooley, Treatise on the Law of Torts, or the wrongs which arise independent of contract. p. 29:
"Personal immunity: The right to one's person may be said to be a right of complete immunity: to be let alone."
1890 - Thomas Cooley on Constitutional limitations, quoted in Russ v. Commonwealth, 60 A. 169 (Pa. 1905) and in Wolf v. Scarnati, 104 MM 2020,
"The protection against unwise and oppressive legislation, within constitutional bounds, is by an appeal to the justice and patriotism of the representatives of the people. If this fail[s], the people in their sovereign capacity can correct the evil, but courts cannot assume their rights. The judiciary can only arrest the execution of a statute when it conflicts with the Constitution. It cannot run a race of opinions upon points of right, reason, and expediency with the lawmaking power...If the courts are not at liberty to declare statutes void because of their apparent injustice or impolicy, neither can they do so because they appear to the minds of the judges to violate fundamental principles of republican government, unless it should be found that these principles are placed beyond legislative encroachment by the Constitution." Russ v. Commonwealth, 60 A. 169, 173
1890/12/15 - The Right to Privacy, Louis Brandeis and Samuel Warren, 4 Harvard Law Review 193. Right to privacy of person, against warrantless search and seizure without due process.
1891 - Union Pacific Railroad Co. v. Botsford, 141 US 250, 251.
"No right is held more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others."
1905/02/20 - Jacobson v. Commonwealth of Massachusetts, 197 US 11 (1905). SCOTUS found that local board of health could mandate smallpox vaccine and that the punishment for refusal to comply was a small, one-time fine. This is the main case cited by vaxx mandate proponents for the proposition that, for any perceived community danger as announced unilaterally by government, the rights of the collective for compliance with government demands supersedes the rights of the individual for bodily integrity, privacy and personal liberty. See analysis by Wentz and Manookian.
1914 - Schloendoerff v. Society of New York Hospital, 211 NY 125, 129. NY Superior Court. Justice Benjamin Cardozo:
"Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient's consent commits an assault for which he is liable in damages. This is true except in cases of emergency where the patient is unconscious and where it is necessary to operate before consent can be obtained."
1922/11/13 - Zucht v. King, 260 US 174. Texas statute re school attendance and vaccine certificates. Cited by medical mandate proponents alongside Jacobson.
1934, Snyder v. Massachusetts, 291 US 97, 105.
"Freedom from unwanted medical attention is unquestionably among those principles so rooted in the traditions and conscience of our people as to be ranked as fundamental." Cited by Cruzan, 1990.
1938 - US v. Carolene Products Co., 304 US 144. Footnote 4 introduced levels of judicial scrutiny, including strict scrutiny, one of a series of decisions testing the constitutionality of New Deal legislation.
1942 - Wickard v. Filburn, 317 US 111. Regulatory power of federal government through Commerce Clause of US Constitution
1944 - Korematsu v. United States, 323 US 214. First and most notable case in which the Supreme Court applied the strict scrutiny standard and upheld the constitutionality of forced relocation of Japanese Americans in internment camps during World War II.
1965 - Griswold v. Connecticut, 381 US 479, 485. Cited by Casey, 1992. Access to contraception information and products for married couples. Outlined prongs of Constitutional strict scrutiny of government actions: necessary to achieve a compelling state interest, narrowly tailored" to achieve the compelling purpose, and uses the least restrictive means to achieve the purpose.
1972 - Eisenstadt v. Baird, 405 US 438. State can't regulate access to contraception information or sales for unmarried people either.
1973/01/22 - Roe v. Wade, 410 US 113. Subordinated the legal human personhood and individual life and bodily integrity rights of preborn humans to the privacy, bodily integrity and liberty rights of pregnant women, thus making legal rights (to life, personal immunity/bodily integrity, etc.) for humans no longer inherent and inalienable, but contingent on explicit government recognition of the subject’s humanity, which can be legally withheld from certain categories of humans.
1974/01/09 - Marshall v. US, 414 US 417. Cited by SCOTUS Chief Justice John Roberts in May 2020 for proposition: "When [government] officials “undertake[ ] to act in areas fraught with medical and scientific uncertainties,” their latitude “must be especially broad.”
1978 - Zablocki v. Redhail, 434 US 374, 388. Cited by Cruzan at 303 re strict scrutiny.
1980/06/16 - Diamond v. Chakrabarty, 447 U. S. 303. SCOTUS held that live, human-made micro-organisms are patentable subject matter under 35 USC 101 patent law, and that the genetically-modified bacterium at issue in the case constitutes a “manufacture” or “composition of matter” within that statute.
1984/06/25 - Chevron v. Natural Resources Defense Council, 467 U.S. 837. Government agency must conform to any clear legislative statements when interpreting and applying a law, but courts will give the agency deference in ambiguous situations as long as its interpretation is reasonable. Beginning of intensified concentration of power in hands of appointed technocrats, at the expense of elected legislators and voting citizens.
1985 - Garcia v. San Antonio Transit Authority, 469 US 528. Cited by SCOTUS Chief Justice John Roberts in May 2020 for proposition “Where those broad limits [on government exercise of power] are not exceeded, they should not be subject to second-guessing by an ‘unelected federal judiciary,’ which lacks the background, competence, and expertise to assess public health and is not accountable to the people.”
1990/06/25 - Cruzan v. Missouri Department of Health, 497 US 261. Police powers can't be applied to medical treatments.
1992/06/29, Casey v. Planned Parenthood. 505 US 833. Cited by Bridges appellants from the June 12, 2021 case as a source for strict scrutiny of constitutional claims against government acts. Also heavily referenced in Dobbs draft opinion, for proposition that there is no privacy right or individual liberty protection in Constitution.
1997/06/26 - Washington v. Glucksberg, 521 US 702. How to identify enumerated rights not in the constitution. Two-prong test: "deeply rooted" in history and tradition, and “implicit in the concept of ordered liberty.”
2013/06/13 - Association for Molecular Pathology v. Myriad Genetics, 539 US 576. SCOTUS found in favor of the biotech corporation and the federal government, ruling that naturally-occurring DNA is not patentable, but synthetic cDNA is patentable.
2020/05/20 - South Bay Pentecostal v. Newsom, 590 US __, 2020. First Supreme Court signal of intent from the Covid-era. Court denied injunction request, from religious congregation, to block governor’s orders restricting religious service occupancy more stringently than commercial business occupancy. Chief Justice John Roberts stated that federal judges should not "second-guess" elected executives and legislators' actions taken during declared emergencies. Roberts analysis shifted the dispute from individual citizens Constitutional religious, speech, assembly, association and other liberty interests, as in conflict with State, to Constitutional/separation of powers dispute among the three branches of government, plus scientific and procedural issues. Cases cited: Jacobson (1905), Marshall (1974), Garcia (1985). See above. Justice Kavanaugh filed a dissent, joined by Thomas and Gorsuch, citing constitutional provisions, but limiting their argument to equal protection of similarly situated organizations, not individual rights to engage in religious life, speech, assembly, association; they said churches should have been treated the same as big box stores by the California closure and occupancy rules.
2021/06/12 - Bridges v. Houston Methodist Hospital, 543 F. Supp. 3d 525 (S.D. Tex. 2021). Federal judge ruled that informed consent doesn't apply to hospital workers, because the injections are government-authorized under FDA Emergency Use Authorization, therefore not part of experimental clinical trials or ordinary medical treatments, therefore hospital employees cannot be legally construed as human subjects or ordinary patients, therefore they have no individual, Constitutional liberties; rights to privacy and against government violation of bodily integrity; or rights to be secure in their persons against warrantless search and seizure.
2022/01/13 - Missouri v. Biden (21 A 240), Louisiana v. Biden (21 A. 241). Centers for Medicare and Medicaid Services (CMS) Biden vaxx mandate on health care workers. Second SCOTUS signal of intent from Covid-era. USSC majority rules Biden's Health and Human Services Secretary can mandate vaxxes on health care workers, because CMS funds hospitals and nursing homes. Thomas, Gorsuch, Barret and Alito dissent. Thomas dissents on grounds that CMS rulemaking power is limited to administrative functions, not mass medical treatment programs. Alito dissents on grounds that HHS/CMS didn't follow proper Administrative Procedures Act notice and comment process. No dissent filed on Constitutional individual liberty, privacy, due process or bodily integrity grounds.
2022/02/10 - Dobbs v. Jackson Women's Health, draft opinion by Alito. Third SCOTUS signal of intent from Covid-era. According to Sheehan's summary in the podcast interview, Alito expressly denies the principle of Constitutionally-protected inalienable individual rights to personal privacy, bodily integrity, or liberty, against State exercise of authority against the individual human being.
Where does the current Supreme Court majority stand on whether the US Constitution protects individual human liberty against encroachment by the State?
Sometimes I gotta laugh, because in the end the whole thing about making up laws and rules (for 'others', truth be told) are in trying to adequately describe and implement their limitations. Few are universal*. In comparison with a theoretically lawless and ruleless society, (if there ever was or is one? hard to prove), I do have to weigh the benefits of codifying the rules and laws at all when they are so easily misapplied.
*Gravity is the only law I have personally found to be universal. Human decency seems common as well (50%? in my life) if we are one on one. Beyond that, complications.
One analogy in support of the above theory is that when they remove stop signs from 4 way stop intersections there are fewer accidents. Or so I heard.
Not a legal scholar by any means, so please pardon my ignorance on a lot of matters. I may need to read more, too- but seems the Justices' arguments for dissent (even if they yield a favorable outcome) are not based on the right concepts? And how did "privacy" become the basis for their terrible ruling on Roe v Wade?
Thank you for your enlightening posts!