U.S. Supreme Court: Issues with current contenders

The four current contenders for the U.S. Supreme Court, including the nominee, Brett Cavanaugh, do present some constitution issues.

Unenumerated rights

The first issue is presented by the statement by nominee Brett  Cavanaugh in his acceptance speech, that he would not find rights not explicitly recognized in the main Constitution.. This has been an issue since the nomination of Robert Bork, who considered the Ninth Amendment, which calls for the nondisparagement of rights that are not "enumerated" (made explicit) somewhere in the Constitution, as amended, to be an "ink blot".There is strong opposition to Supreme Court judges doing that, especially from so-called "conservatives", who don't understand that constitutional rights are all "immunities", restrictions on the powers of government. They are not "privileges" to receive a sufficient amount of public resources, such as for education, healthcare, elder support, or any other objects of public subsidies.

Interestingly, in the case of Roe v. Wade, the Fifth Circuit decided that a "right to an abortion" was a Ninth Amendment right of a woman  "to choose whether to have children", which by the 14th Amendment, was "incorporated" for the states. This presented the Supreme Court with an apparent problem,  because there was opposition to funding unenumerated rights in the Senate. The Fifth Circuit found a Ninth Amendment "right  to choose whether to have children". So the SC tried to sustain the Fifth Circuit without embracing the Ninth Amendment. The result was an incoherent opinion. There was no way to avoid the Ninth Amendment.

It would perhaps too much to expect a nominee to venture into an extended discussion of what a "right" is, and what it is not. It is awkward to say "I will not find a 'right' to a sufficient amount of a public resource." That is too complicated for most senators. So the candidate denies he will try to find any "unenumerated" rights. That is somewhat disingenuous, but the issue needs to be discussed.

When "life" begins

One of the potential nominees, Amy Barrett, has been reported to have stated that human "life" begins at conception. That is a misstatement of the issue in Roe v. Wade. which in its essence was not about "life" nut about "personhood" because "Rights (immunities)" attach to "persons", (roles in court), not to "life", despite what the Declaration of Independence says. (That is why some activists have sought to move the commencement of "personhood" back to conception. That would be a mistake. We cannot allow each state to redefine "personhood", because if we did, a state could define some people to be nonpersons, without rights. So there has to be a uniform definition across all states if the protections of the Constitution are not to be meaningless. That is the basis for finding the right to be incorporated under the Ninth Amendment, as the Fifth Circuit did.

So when does "life" begin?

Not at conception. Each individual is the latest in an unbroken chain of life that goes back to at least the point when the first single-celled organism became a multi-celled animal, which occurred about 650 million years ago, during the pre-Cambrian era, when the surface of the Earth was covered with ice ("snowball Earth") and there was only one continent, Rodinia. We are all descended from that multi-celled organism. That is when "life" began.

So when does "personhood" begin?

This was declared by the jurist Edward Coke in the 15th century, and later restated by legal scholar William Blackstone, in the early 18th century, who provided most of the definitions for terms used in the U.S. Constitution. They held that "personhood" begins at natural birth, or induced natural birth (they had Cesarean sections in those days). Some of the states later found that personhood began with baptism, entry of a name in church records, or even later. Not at "conception", the date of which could not have been defined with any precision in those days, or even now.

Consider what would happen if we defined "personhood" to begin at conception? It would make every fetus the ward of a court, with the court having power to supervise the pregnancy. It could order the woman to continue a pregnancy, and not terminate it, under penalty of law. That would be forced pregnancy. Do we want that? Every pregnant woman chained to a bed. Anyone see the play "A Handmaid's Tale". Good way to stop everyone from having sex.

Need for uniformity

Incorporation of a Ninth Amendment right is required by the need to have a uniform definition of "personhood" (legal role) across all jurisdiction, since constitutional rights attach to "persons" and not just to "citizens" or "life".  If states could define personhood, they could deprive anyone of rights by defining him to be a "nonperson". Thus a state could find that Blacks are not persons as a way to deprive them of their liberty.Thus a state could find that Blacks are not persons as a way to deprive them of their liberty


1. Roe v. Wade, 1221 (N.D. Tex. 1970) (“On the merits, plaintiffs argue as their principal contention that the Texas Abortion Laws must be declared unconstitutional because they deprive single women and married couple of their rights secured by the Ninth Amendment to choose whether to have children. We agree.”).

2. Roe v. Wade, 410 U.S. 113 (1973)

3, A Handmaid's Tale, Margaret Atwood.

4. Robert Bork and the Inkblot, Kurt Lash.

5. Constitutional views on abortion



The word “collusion” is much in use today, not because it is a crime (it is not), but because it sounds sinister. It has generally been used in attempts to investigate whether Trump colluded with Russia in a way that would be grounds for inpeachment and removal of Trump from office. That would not put Hillary Clinton in that office. It would put Mike Pence there, and Trump would undoubtedly continue to rule by telling Pence what to do, in much the way the Communist Party ruled the Soviet Union before it fell, by having a party official for every government official, telling him what to do. Or like Putin continued to rule Russia while Medvedev served in that office. Impeach Pence. Being guided by a shadow government is also not an impeachable offense, or every president since 1913 would be in violation. Remove Pence and the presidency just passes to the Speaker of the House. Sorry Hillary, but none of these things leads to a do-over of the 2016 election. Not before 2020.

So what is the reasoning of Hillary supporters? It seems to go like this:

1. An excellent candidate like Hillary Clinton could not possibly have lost an honest election.
2. Therefore, the vote count had to have been hacked. But who has the means to do that? Only Russia. Perhaps.
3. Would Russia have wanted to elect Trump? Not without a strong inducement. Perhaps the return of Alaska, or help in regaining control of Eastern Europe. Would anyone, even Trump, have had the means to offer such an inducement? Not really. No US. president has such power. Not even paying off enough Russian oligarchs would likely be enough. (Give them all our Uranium? That’s already been done. By Trump’s opponent.)

Early in this controversy some of the intelligence agencies, led by the CIA, reported that the 2016 presidential election had been :hacked”, but not in ways that changed any election outcomes. This was an irresponsible report to make, because most computer=naive people will seize on that word to conclude that election outcomes were flipped. The use of that word has fueled the entire “Russia hacked our elections” narrative. It should be noted that those people have not sought to make vote-counting systems more difficult to hack, but to attack the suspected beneficiary of such a hack and to try to overturn the results of the 2016 election. It seems they don’t care about flipping elections in favor of Democrats. Only in favor of Republicans.

2016 election outcomes were not flipped.

There are too many different kinds of voting machines in too many voting precincts in more than 3000 counties. There are no centralized vote counting machines, although there are machines that add the number of votes from each precinct. But a simple recount can reveal if there are any discrepancies. Much has been made about voting machines being hackable, but there are too many voting machines of different makes and models. Hacking an election remains a potential threat, but the solution remains voter verifiable paper ballots, such as those used in Brazil. Absentee ballots are a greater path to corruption. The greatest threat is still trucking in millions of illegal entrants and inducing local voting officials to accept them. That can only be done in a few areas, however. Requiring state-issued voter photo ID is the best way to prevent that, although it has to be made easy to get them.

This point is well -made in an article in Fortune, 5 Reasons Why Hackers Can’t Rig the U.S. Election, by Jeff John Roberts, August 9, 2016.

What should have been done

1. The special prosecutor, Robert Mueller, should never have been charged to find “collusion” between the Trump campaign and Russia without specifying a reasonable deadline for reporting his findings.

2. He should have been charged to find only successful “collusion” to change the results of the 9016 election, not “collusion” of any kind.

3. He should have charged only with the above, not with finding violations of other statutes, especially 18 USC 1001 (which is arguably unconstitutional as usually applied). Only seek indictment of perjury under oath.


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