Column on Scalia and the Ninth Amendment

The Forgotten Ninth Amendment

Tibor R. Machan

In a recent talk US Supreme Court Justice Anthony 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 which 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 that ?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 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 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.