A Passion for Liberty
Tibor R. Machan @ Rational Review
Posts tagged Ninth Amendment
Machan’s Archives: The Overlooked 9th
Feb 10th
The Overlooked Ninth Amendment
Tibor R. Machan
In a talk a while back US Supreme Court Justice Antonin Scalia criticized his fellow justices for making law, a role he believes belongs to the legislature or the people themselves. Justices, he argued, are there to interpret the US Constitution and this they must do by reading it as it was intended back when it was framed and when it was later amended. In his dissent Scalia wrote,
The court says in so many words that what our people’s laws say about the issue does not, in the last analysis, matter: ‘In the end our own judgment will be brought to bear on the question of the acceptability of the death penalty….’ The court thus proclaims itself sole arbiter of our nation’s moral standards.
The charge Scalia has leveled at his colleagues—five of them, the majority who ruled for abolition of the death penalty for juveniles and the mentally impaired—is the substance of the general criticism usually labeled “judicial activism.” This view decries it whenever the court rules as if there existed rights that are not explicitly mentioned or enumerated within the US Constitution. One of the most famous of these unenumerated rights is the right to privacy and the majority of the court has ruled in several recent cases that various state laws violate this right and are, therefore, unconstitutional, invalid laws.
In his recent public talk Justice Scalia argued that the idea of a living constitution is essentially wrongheaded because it leaves the country without a firm basis of law by which it can be governed. Instead of a stable set of constitutional principles, justices have come to make laws based on their “personal policy preferences,” thus undermining the classic doctrine of the rule of law (as opposed to that of arbitrary governors).
The case Scalia makes has a good deal going for it because it is indeed part of the theory of politics in the USA that the role justices play does not include making laws, only interpreting the Constitution when some legislation is challenged through the courts (and reaches the US Supreme Court). The living constitution idea is, indeed, destructive of the rule of law and of democracy itself because it encourages arbitrariness, the departure from governance by law toward governance according to the justices’ own convictions.
Yet, there is a problem here because Justice Scalia ignores the Ninth Amendment to the US Constitution, the one that states unequivocally that aside from rights enumerated in that document, the people have others, as well. The Ninth states: “The enumeration in this Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” So, while this does not sanction any kind of loose, “living,” constitutional doctrine, it does make clear reference to rights that aren’t explicitly listed in the US Constitution, rights that we nonetheless possess.
What would be those rights? Pretty much to do everything and anything the government isn’t authorized to prohibit. Indeed, the point of the US Constitution does not appear to be to spell out our rights in particular, other than to spell out for emphasis some of the most crucial ones. It is, rather, to state what the strictly limited powers of government are.
As to whether this authorizes the US Supreme Court to strike down state and federal legislation that permits the execution of juveniles or the mentally ill, the situation is complicated. It is arguable, however, that one role of the court is to spell out the logical meanings of terms within the constitution for our own times, meanings that have clearly undergone some rational evolution.
Just as in physics the term “atom” no longer logically means exactly what it meant 300 years ago, so in political theory and jurisprudence the term “human being” could reasonably require some updating. If it is found, for example, that children and the mentally disabled lack the full capacity of adult humans, this could reasonably require interpreting provisions of the US Constitution and other laws accordingly.
And that is just what seems to lie behind recent rulings: for example, the young, who in our day aren’t permitted to enter into contracts, to marry on their own, or to vote, would probably not warrant being judged guilty of crimes exactly as they were when certain nuances in understanding what human beings are had been overlooked or were not clearly understood.
Against Scalia it can be argued that although the idea of a living constitution is dangerous, so is the idea of a frozen one. Reasonable development in the meaning of the terms in the fundamental laws of the society is to be expected and should not be thwarted in the US Supreme Court’s deliberations and rulings. Those who protest that this is anti-democratic need to consider that the Founders were not pure democrats by a long shot—just consider the Electoral College, which is blatantly anti-democratic.
Is Health Care “Reform” Constitutional?
Dec 7th
Is Health Care Reform Constitutional?
Tibor R. Machan
On this occasion I wish to address some of Dean Erwin Chemerinsky’s points made in an article he wrote for the December 2009 edition of Saturday Night magazine, in a guest column title “The Constitution and Health Care Reform,” one that defends the constitutionality of health care “reforms” currently under way.
Before I begin I wish to enter a protest about calling the health care policies being advocated by President Obama and the Democratic leadership in Congress reforms. In my view they are not any kind of reforms, bits of adjustment here and there, of the approach Americans take to to securing health care and health insurance for themselves. It is rather a major, even revolutionary, change because while in the past some of health care (Medicare and local county hospital policies) has had government involvement, this time the objective is to establish what is called “a public option,” meaning a form of health care that is provided by the federal government, just as, say, the Interstate Highway system is provided by the federal government.
But what about Dean Erwin Chemerinsky’s major points in this piece? First, though, it should be noted that while the dean comes with impeccable credentials, this should not mislead readers to think that equally well credentialed American constitutional law professors do not disagree with him. For example, the University of Chicago Law School’s Professor Richard Epstein takes a diametrically opposed view on the topic. He has published articles and books critical of government regulations of all parts of American society and makes a powerful case that such regulations are indeed unconstitutional. He has even defended the highly controversial idea that anti-discrimination laws violate individual rights (to, for example, freedom of association).
Second, Dean Chemerisnky’s argument assumes that the interstate commerce clause authorized the federal congress to regulate–that is to say, aggressively interfere with–commerce (among the several states). Yet, arguably what that clause did is to authorize Congress to regularize such commerce, meaning, to abolish tariffs and duties that had been imposed by the colonies prior to the creation of the union. What Congress was authorized to do, then, is to establish a free market in the United States of America not to obstruct it. Not that this is a popular view among constitutional scholars but we aren’t discussing what is popular or not but what makes the best sense, objectively, including in the light of American political and legal history. After all, for a long time the constitutional treatment of African Americans followed precedents that eventually were overturned because they were deemed to be grossly unjust. Well, the kind of welfare statism advocated by Dean Chemerinsky may well be similarly unjust, given how aggressively it promotes violating the private property rights of American citizens. I am not complaining of the dean’s embrace of such views, though I object to them, but I protest his assertion that welfare statism is sanctioned by the U. S. Constitution and the political philosophy of the American Founders.
Third, contrary to what the dean implies, the Ninth Amendment to the U. S. Constitution makes clear that there are unenumerated rights–ones not listed in that document–which citizens also have. Recent rulings concerning the use of contraception and engaging in sodomy have relied on this reading. And that is, of course, as it must be in light of the political tradition that underlies the Constitution, one in which one’s rights, basic and derivative, are pre-legal, with the law resting on them not the other way around. Since we have many rights by virtue of our human nature, the Ninth Amendment makes eminently good sense.
Fourth, and more generally, in a free country citizens may never be placed into involuntary servitude to their fellows as this health care reform movement intends to do. It makes no difference about the precedence–again, many precedents do not deserve to be followed and those that support a confiscatory, intrusive welfare state could well be among them.
