Gilligan's Wake Author Argues Ninth Amendment Law Before Scalia

Tom Carson, master ranter, reviews American Original, Joan Biskupic's biography of Supreme Court Justice Antonin Scalia. While giving high marks to Biskupic's narrative and interpretation, Carson argues (rightly, I think) that Scalia doesn't believe in the central philosophy of his own jurisprudence: 

[Scalia is] an unlikely poster boy for Republican claims that they're only trying to protect our founding document from the "judicial activism" he in fact robustly embodies. Variously termed "strict constructionism," "originalism" (the one Scalia likes), and "textualism," right-wing advocacy of sticking to the letter of the Constitution generally comes down in practice to lofty cover for a desired political result: reduced rights and entitlements. So does the liberal "living Constitution" rhetoric that promotes expanding them.

One polemical advantage of the "living Constitution" argument, though, is that its deliberate vagueness as dogma  makes opportunistic departures from it hard to pin down. Not so textualism,  undermined in the text itself by the Ninth Amendment -- the one that says,  in toto, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."  That noted nonfan of construing, Robert Bork, once disparagingly if not outright denyingly called the Ninth "an inkblot," proving textualism is as textualism does. Though the amendment had been successfully theorized into irrelevance before Bork and Scalia were born, shouldn't they be the ones insisting it means what it says it means?  If they don't, that's because it doesn't suit them to.

Carson is here continuing a recent trend on the left toward citing the orphaned Ninth Amendment as a promise to expand the universe of non-enumerated positive rights, presumably including a right to health care, a right to be free from hate speech, etc. Berkeley law professor Daniel Farber made this type of argument in his 2007 book Retained By the People: The "Silent" Ninth Amendment and the Constitutional Rights Americans Don't Know They Have. If you'd like to skim that work, here's a one-minute book report I did at the time. (And if you haven't read Carson's novel Gilligan's Wake, it's a great performance that, like the cast of Gilligan's Island itself, gets better as it goes along. Amazon reviewer Chuck Miller calls it "dense and pointless and probably even pretentious.")

But non-enumerated rights can work both ways. I believe I have a right to ingest harmful substances, a right not to send my kids to school or provide an accredited home-schooling substitute, a right to threaten the president, a right not to be compelled to testify in court, a right to be compensated for any time I have to spend in the presence of boring people, a right to coin my own money, and a bunch of other rights I can't find in the Constitution. You could win a lot of friends arguing that people have a right to keep all the money they earn, but this would further erode the legitimacy of the 16th Amendment.

Update: I had not intended to imply that Carson personally believes in a right to hate codes, or for that matter a right to health care. Carson writes: "I think speech codes of any sort are un-American. I'd also probably horrify my librul friends if I vented my doubts about the constitutionality of hate-crime laws, no matter how much I loathe the behavior they're aimed at."

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  • Meta4||

    "sticking to the letter of the Constitution generally comes down in practice to lofty cover for a desired political result: reduced rights and entitlements."

    What's wrong with reducing entitlements? What entitlements does the Constitution guarantee?

  • Silentz||

    Not to mention reduced rights for whom? The government?

    If you believe your rights are granted by the government, you're reading the wrong document.

  • ||

    Note what he said was "right-wing advocacy of sticking to the letter of the Constitution generally comes down in practice to lofty cover for a desired political result: reduced rights and entitlements."

    I reject the proposition that "sticking to the letter of the Constitution generally comes down in practice to ... reduced rights and entitlements."

    But the notion that the right wing's advocacy of originalism in construing the Constitution actually serves as cover for achieving the desired political results of reducing individual rights and entitlements? Oh hell yeah.

    And I will +1 the question:

    "What's wrong with reducing entitlements?"

  • ||

    I have a right to be compensated for any time I have to spend in the presence of boring people[...]

    Not without a contract . . .

  • juris imprudent||

    Not without a contract . . .

    What, you don't have your copy of our social contract?

  • ||

    The best evidence for Scalia's fair-weather federalism is Raich v. Gonzalez. He not only voted with the majority, he concurred with an opinion that is just impossible to square with his prior 'approval' for federalism claims. Well,at least I am unable to square the two.

    That decision, more than any, makes Carson's point, but Carson does not raise it.

  • ||

    Justice Scalia has always, among other things, paid more attention to stare decisis than Justice Thomas. But then again, every judge pays more attention to stare decisis than Justice Thomas.

    There also are a host of decisions where Justice Scalia has clearly joined a side that is "liberal" in its outcome, by applying his principles. Texas v. Johnson (1989), the flag burning case, is one such example-- a significant one, since it was 5-4 (with Stevens on the "flag burning can be made illegal" side).

    The entire line of Sixth Amendment cases, well, you can only say that Justice Scalia is being fair-weather if you think of him as a big softie who loves defendants. See the bit about the Sixth Amendment cases here.

    Justice Scalia started out, in Mistretta v. United States (1989), being the only Justice to apply the Sixth Amendment and say that the Sentencing Commission was Constitutional, to converting a five member majority to yield the results in Booker, Apprendi, Ring, Blakely, and the latest Melendez-Diaz.

    The vast majority of people who cite Raich v. Gonzalez as evidence of fair-weather federalism are only slightly less ignorant than people who do not know of Raich v. Gonzalez at all. There are quite a few cases where Justice Scalia reached a decision that he would not agree with personally.

    The truth, as in any situation like this, is complicated. Personal opinion may make a difference, as it does for all Justices, but so does stare decisis as other factors. (Also, as the Court is loath to admit, so does public opinion and election results.)

  • ||

    That is because, although many people don't understand the concept, Scalia actually is a very good jurist.

  • Robert Bork||

    I do not think you can use the Ninth Amendment unless you know something of what it means. For example, if you had an amendment that says Congress shall make no--and then there is an ink blot and you cannot read the rest of it and that is the only copy you have, I do not think the court can make up what might be under the ink blot if you cannot read it.
  • Eric the .5b||

    I wonder how much worse a bullet than Scalia we dodged with not getting Bork.

  • Paul||

    I could be wrong, but I'd take Scalia over Bork any day. Any justice who refers to amendments in the Bill of Rights as "inkblots" or "anachronisms" are to be sidelined. And I'm looking at you, Warren Berger.

  • Lord Jubjub||

    Doesn't the Constitution has specific clauses related to who has the right to coin money?

  • ||

    Grammatical construction aside, yes.

    Article I, Section 8 identifies the enumerated powers of Congress, among which is the power to coin and set the value of money.

    Note that Cavanaugh's point in putting forth his little list of silly "rights" was that "non-enumerated rights can work both ways."

  • ||

    Awesome alt text. That'll do, Tim.

  • ||

    I believe I have a right . . . a right not to be compelled to testify in court . . . and a bunch of other rights I can't find in the Constitution.

    Not only aren't you going to find that in the constitution; you're going to find exactly the opposite: "In all criminal prosecutions, the accused shall enjoy the right . . . to have compulsory process for obtaining witnesses in his favor . . . ."

  • Tim Cavanaugh||

    See, it's stuff like that that makes me wish we were still under the Articles of Confederation.

  • D.A. Ridgely||

    But Seamus, the provision only entitles the defendant to obtain witnesses. It doesn't say a word about compelling them to testify! *grin*

  • MattXIV||

    Textualism, while problematic, does offer a non-subjective interpretational reference point - a literal reading of the text of the Constitution. Similarly, the Originalisms refer to original public understanding or origninal intent (not subjective for a modern judge, but not knowable for a modern judge either).

    The Living Constitution school of thought does not offer any such standard. There's no objective interpretational reference point associated with it - the Constitution means whatever the judges interpretting it think would produce the best policy outcomes. The standard isn't vague - the whole point is that there isn't any standard at all. This is actually a polemical weakness, since the public isn't dumb enough to not recognize that it establishes rule by judge rather than rule by law, which is why it's not used in general consumption political rhetoric.

    Scalia (and Bork even more so), despite his claims practices the Living Constitution approach, but simply puts a conservative spin on it - Originalism is only abided by when it reaches convienent policy outcomes.

    So, we have a situation where one side is publicly in favor of reading things in or out of the Constitution to suit their policy agenda and the other claims to be against it but does it anyway.

  • ||

    Scalia (and Bork even more so), despite his claims practices the Living Constitution approach, but simply puts a conservative spin on it - Originalism is only abided by when it reaches convienent policy outcomes.

    Such as?

  • MattXIV||

    The 9th amendment example cited in the article, Raich, his selective fondness of stare decisis, which he tends to favor unless it interferes with a social conservative policy objective.

    I don't find Thacker's examples that compelling for the same reason I don't find Kelo to be a compelling argument that the liberal justices are pro-business - there are often broader policy objectives in play than the immediate outcome and since he's generally pro stare decisis he's careful about ruling himself into a corner on different matters.

    And I do concede that he's by no means the worst offender on the court in these regards.

  • Paul||

    I don't find Kelo to be a compelling argument that the liberal justices are pro-business - there are often broader policy objectives in play

    Nice... very nice.

  • Paul||

    Gonzales v Raich. Just off the top of my head.

    What was the case where the girl was strip searched for an Ibuprofen?

  • ||

    The Ninth Amendment does mean what it says. But like the Necessary and Proper Clause, it has to be interpreted in the Constitution as a whole.

    Me, I think that plain reading of the Ninth Amendment is that it means that the Necessary and Proper Clause (and the rest of the Constitution) does not give the Government the power to do anything that isn't covered for in the enumerated powers. The Ninth Amendment means that civil liberties are not limited to just what is forbidden the state in the Bill of Rights. However, the Ninth Amendment does not list those restrictions, so we seek a definition elsewhere. The best definition is obtained by understanding that the Constitution sets forth a government of limited, enumerated powers, and that enumerating rights does not mean that rights are listed to those enumerated.

    There are an infinite number of possible government actions. We can either consider that government powers are enumerated and limited, and thus rights of the American people consist of the complement of that set, unenumerated and infinite, or that the rights of the American people are enumerated and finite.

    The Constitution, before the Bill of Rights, had an enumerated list of powers but no enumerated list of rights. The understanding was that everything not permitted government was forbidden. Some people were concerned that by enumerating certain rights in the Bill of Rights, that people would then conclude that government had the power to do anything not forbidden to it in the Bill of Rights. The Ninth Amendment is merely a reminder that that is not so. The Bill of Rights is only a list of examples and of circumscriptions on the powers that the government has, but does not give it a license to do anything else.

  • Mad Max||

    Since the 9th Amendment refers to 'retained' rights, then the right would have had to be recognized when the Constitution and Bill of Rights were adopted.

    Some rights recognized at the time, but not specifically enumerated in the federal constitution, include such things as these, which could be found in legal texts of the Anglo-American tradition (especially the state bills of rights):

    -The right of anyone who has suffered a legal injury to have a legal remedy

    -The principle that nobody may be a judge in his own cause (the 6th Amendment provides for impartial juries, but says nothing of judges). Judge Coke even said that such a right was beyond possibility of abrogation even by parliament.

    -The right of those with conscientious scruples against bearing arms to be excused from service on payment of a specified sum (this right was going to be included in what became the Second Amendment, but was left out for fear it would be read to limit the right to bear arms; state constitutions often recognized this right, though).

    -The ban on government divvying up property prior to seizing it (from the English Bill of Rights)

    and there are probably other examples.

    But this isn't an excuse for the courts to add new rights unthought of in the 18th century. Of course, the courts go ahead and do this independently of the 9th amendment, so it's not like they need an excuse to act unconstitutionally.

  • Paul||

    In a vacuum, he's very correct. Conservatives traditionally ignore or whistle past the ninth. But to suggest that the Ninth is the 'commerce clause' of rights-- especially positive rights-- is dubious.

    I believe we do have many rights not enumerated in the constitution, but almost all of the 'extra' rights I believe in are further limits to government-- the basis on which the constitution was penned.

    The ninth does not, in my opinion, give a blank check to ever-expanding government power to 'do good works'.

  • Wicks Cherrycoke||

    "In a vacuum, he's very correct. Conservatives traditionally ignore or whistle past the ninth. But to suggest that the Ninth is the 'commerce clause' of rights-- especially positive rights-- is dubious.

    I believe we do have many rights not enumerated in the constitution, but almost all of the 'extra' rights I believe in are further limits to government-- the basis on which the constitution was penned."

    It is curious how the left-leaning law professors who tend to populate American law schools can look at the Ninth Amemdment, which speaks very clearly about the rights retained by the people against the government they have chosen to create, as somehow being a basis for the courts to exercise greater authority over the people, thereby reducing their retained rights. If anything, the Ninth Amendment should be a barrier to government power, not a basis for it.

    But that is like pointing out the absurdity of the same law professors claiming that the 14th Amendment, which expressly directs itself to limiting the authority of state governments, was somehow "really" directed to private conduct.

    I can't help thinking that Bork's distaste for the 9th and 14th Amendments is in part a reaction to the efforts of the left to convert what should be bulwarks against government power into positive sources of governmental authority.

  • Wicks Cherrycoke||

    Aside - has the preview function been removed?

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