Uneasy Money

Though overshadowed by the towering obnoxiousness of their questioning of Judge Katanji Brown Jackson in her confirmation hearings last week, the Banana Republicans on the Senate Judiciary Committee signaled that their goals for remaking American Constitutional Jurisprudence extend far beyond overturning the Roe v. Wade; they will be satisfied with nothing less than the evisceration of all unenumerated Constitutional rights that the Courts have found over the past two centuries. The idea that rights exist only insofar as they are explicitly recognized and granted by written legislative or Constitutional enactment, as understood at the moment of enactment, is the bedrock on which Justice Scalia founded his jurisprudential doctrine.

The idea was clearly rejected by the signatories of the Declaration of Independence, which in its second sentence declared:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness.

Clearly the Declaration believed that individual rights exist independently of any legislative or Constitutional enactment. Moreover the three rights listed by the Declaration: rights to life, liberty and the pursuit of happiness are not exhaustive, but are only among a longer list of unenumerated rights endowed to individuals by their Creator. Rejecting the idea, of natural or moral rights to which individuals are entitled by virtue of their humanity, Scalia adopted the positivist position that all law is an expression of the will of the sovereign, which, in the United States, is in some abstract sense “the people” as expressed through the Constitution (including its Amendments), and through legislation by Congress and state legislatures.

Treating Scalia’s doctrine as controlling, the Banana Republicans regard all judicial decisions that invalidate legislative enactments based on the existence of individual rights not explicitly enumerated in the Constitution as fundamentally illegitimate and worthy of being overruled by suitably right-thinking judges.

Not only is Scalia’s doctrine fundamentally at odds with the Declaration of Independence, which has limited legal force, it is directly contradicted by the Ninth Amendment to the Constitution which states:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

So, the Ninth Amendment explicitly negates the Scalian doctrine that the only rights to which individuals have a legal claim are those explicitly enumerated by the Constitution. Scalia’s jurisprudential predecessor, Robert Bork, whose originalist philosophy Scalia revised and restated in a more palatable form, dismissed the Ninth Amendment as unintelligible, and, therefore, essentially a nullity. Scalia, himself, was unwilling to call it unintelligible, but came up with the following, hardly less incoherent, rationale, reeking of bad faith, for relegating the Ninth Amendment to the ash heap of history:

He should apply the Ninth Amendment as it is written. And I apply it rigorously; I do not deny or disparage the existence of other rights in the sense of natural rights. That’s what the framers meant by that. Just because we’ve listed some rights of the people here doesn’t mean that we don’t believe that people have other rights. And if you try to take them away, we will revolt. And a revolt will be justified. It was the framers’ expression of their belief in natural law. But they did not put it in the charge of the courts to enforce.

https://lareviewofbooks.org/article/reading-the-text-an-interview-with-justice-antonin-scalia-of-the-u-s-supreme-court/

If Scalia had been honest, he would have said “He cannot apply the Ninth Amendment as it is written. And I rigorously do not apply it.” I mean what could Scalia, or any judge in thrall to Scalian jurisprudence, possibly do with the Ninth Amendment after saying: “But [the framers] did not put [the Ninth Amendment] in the charge of the courts to enforce”? After all, according to the estimable [sarcasm alert] Mr. Justice Scalia, the Ninth Amendment was added to the Constitution to grant the citizenry — presumably exercising their Second Amendment rights and implementing Second Amendment remedies — a right to overthrow the government that the framers were, at that very moment, ordaining and establishing.

In The Constitution of Liberty, F. A. Hayek provided an extended analysis of the U. S. Constitution and why a Bill of Rights was added as a condition of its ratification in 1788. His discussion of the Ninth Amendment demolishes Scalia’s nullification of the Ninth Amendment. Here is an extended quotation: