Column on Rights & Courts

Rights and the Supreme Court

Tibor R. Machan

Over the years I have been paying heed to what the US Supreme Court does,
not as some expert but as an reasonably well educated lay person. And one
observation I have come away with is that if a case comes their way, the
Court either returns it to a lower court or offers a rather narrow ruling,
although often with broad implications.

Critics of the Court, in turn?often including those on it who issue a
minority comment?refer to provisions of the US Constitution and/or
precedents with which the rulings being offered seem to conflict. A most
notable criticism is that the Court has invented some right that isn?t
mentioned in the US Constitution. This is was repeated a lot about Roe v.
Wade, where the Court was being charged with inventing a ?right to
privacy,? as well as in a previous case involving the attempt to ban
contraceptives for sale in Connecticut. More recently the Texas sodomy
case drew criticisms claiming, once again, that there is no right to
privacy mentioned in the US Constitution, therefore claiming that gays
have the legal right to engage in sexual conduct in the privacy of their
home is wrong.

Interestingly, though, recently the court ruled that the city of New
London, Connecticut, has the authority to expand the power of eminent
domain from taking for public use to taking for the purpose of economic
development (and in the process for private use). This time critics lined
up to denounce the court for its sanction of the violation of the right to
private property. But is that correct? What the court did is to sanction
expansion of eminent domain which may imply such a violation but only if
the US Constitution lists such a right. But does it? It mentions private
property in the Fifth Amendment but there is no mention of any right to
such property.

What is interesting about this is that many of the same critics who
complain about the justices inventing rights in certain rulings seem to be
complaining about the justices not upholding rights in others. Yet, in
both kinds of cases there are no rights being mentioned in the US
Constitution, not at least explicitly. Instead the rights at issue in
these cases are deemed by the justices who want to uphold them to be
implicit, as well as by the critics who complain they haven?t be upheld.

The only way this can make sense is by taking one amendment in the Bill
of Rights very seriously which is nearly always neglected, namely, the
Ninth. This amendment states that ?The enumeration in this Constitution,
of certain rights, shall not be construed to deny or disparage others
retained by the people.? Since the Founders and the Framers were not
collectivists, ?the people? must mean ?the individuals who make up the
citizenry of the country.? Indeed, it is these people who the Declaration
of Independence claims possess ?unalienable rights; [and] that among these
rights are life, liberty and the pursuit of happiness.?

So the inference that there are rights we all have in America other than
those explicitly listed in the Bill of Rights makes good sense. So those
who complain abut justices inventing them need to argue that the ones they
claim were being invented aren?t among those not enumerated ones mentioned
in the Ninth Amendment. And when critics hold that the justices failed to
uphold rights not explicitly mentioned, they too need to take the Ninth
seriously and argue that it implies such rights, for example, the right to
private property.

Of course, that would be an impossible task but it is quite likely that
the Founders and Framers knew this quite well. Their task wasn?t to list
all the rights we have, only the ones under the greatest danger at the
time. And they wanted to spell out the limited powers of government.
Beyond what those limited powers entailed for purposes of government
administration, the people would, of course, retain all the rights they
had, namely, to do anything they chose to do. And when a government
measure would infringe on their rights to do what they choose to do, the
courts would properly strike it down.

Trouble is that by now government has vast legal powers, sanctioned by
the various courts, and anytime the courts?or critics complain that they
fail to?uphold some individual rights, it all sounds quite arbitrary, both
the pros and the cons being based not on the Bill of Rights but on
personal likes and dislikes, on various moral or other convictions and
lack thereof. But that?s not law but its very ruin.

It would be much better if the courts, all of them, really stuck to the
Bill of Rights and what it implies. This is that we all have the right to
do whatever we choose to do (implied by the liberty to which, per the
Declaration, we have an unalienable right), provided we do not violate
someone else?s rights. That is indeed the ideal of a free society that has
been associated with America and it would be best for the courts and its
critics of stick to it.