[FoRK] "Demystifying the 9th amendment"

Russell Turpin deafbox at hotmail.com
Mon Mar 28 08:52:14 PST 2005

Here's the link:


Several comments. First, Tibor Machan is a libertarian
conservative. Second, the idea that the 9th amendment
suggests the Constitution is meant to be interpreted
liberally with regard to individual liberty is nothing new.
In addition to privacy, consider other inferred rights,
like the right to travel freely. The notion that the Bill
of Rights should be interpreted by string search is quite
frightening. Third, the decision on executing juveniles
had nothing to do with identifying the 9th amendment's
unenumerated rights, but was a straightforward
interpretation of "cruel and unusual." What might have
been usual in 1789 isn't necessarily usual in 2005. If
the framer's had meant to freeze the interpretation, they
would have written "unusual at the time of this
Constitution's ratification." What Scalia decries in that
case is precisely what the Constitution literally demands.
Despite that, this is a good article. Finally, consider
that Thomas has floated the idea of disincorporating
the 1st amendment -- allowing states to institute
churches, ban blasphemy, etc. -- and that Bush thinks
Scalia and Thomas are the kind of justices he wants
to appoint. Everyone concerned with American freedom
should be worried.

[Text of article follows.]


Tibor Machan

In a recent talk, U.S. 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 U.S.
Constitution and this they must do by reading it as it was
intended back when it was framed and when it was later

In his dissent Scalia wrote of his concern that the high
court is proclaiming itself the sole arbiter of the 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 when the court rules as if there exist
rights that are not explicitly mentioned or enumerated within
the U.S. 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 and 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

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.

Yet, there is a problem here because Justice Scalia ignores
the Ninth Amendment to the U.S. Constitution, the one
that states unequivocally that aside from rights enumerated
in that document, the people have others as well.

The Ninth reads: "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 U.S. Constitution.

What could those rights be? Pretty much to do everything
and anything the government isn't authorized to prohibit.
Indeed, the point of the U.S. Constitution does not appear
to be to spell out our rights in particular, other than to
spell out for emphasis of 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 U.S. 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.

If it is determined, for example, that children and the
mentally disabled lack the full capacity of adult humans,
this could reasonably require interpreting provisions of
the U.S. 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

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.

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