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."
