Hayek Refutes Banana Republican Followers of Scalia Declaring War on Unenumerated Rights

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.


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:

Hayek The Constitution of Liberty, pp. 185-86

5 Responses to “Hayek Refutes Banana Republican Followers of Scalia Declaring War on Unenumerated Rights”

  1. 1 marcus junius tullio March 27, 2022 at 6:16 pm

    commie bastard


  2. 2 David Glasner March 27, 2022 at 6:23 pm

    How did we not realize it sooner? It should have been obvious.


  3. 3 Henry Rech March 27, 2022 at 10:06 pm

    ‘mazing how an unearthed two millennia old Roman has the modern vernacular off pat.


  4. 4 Inal Gagloeff March 28, 2022 at 11:52 am

    Hello David.

    I can’t agree with your arguments for following reasons.

    I. Natural Rights in Declaration of Independence is in really part of Natural Law tradition with it constraint against licentiousness (see Burlamaqui, Heineccius, Blackstone in Liberty Fund bibliography) and this point was good elaborated in Thomas West monography “The Political Theory of the American Founding: Natural Rights, Public Policy, and the Moral Conditions of Freedom” (Cambridge University Press, 2017). Especially see Burlamaqui in Liberty Fund bibliography, because as scientific editor of Burlamaqui tractatus said — it was Burlamaqui who influenced Jefferson and whole language of Declaration.

    II. Ninth Amendment as even famous liberal academic argues:

    «The decision to include the Ninth Amendment in the Bill of Rights can
    also be explained by the continued vitality of principles derived from the
    customary constitution. Modern commentators are often baffl ed by this
    amendment, which too many mistakenly conclude was meant to preserve
    some ill-defi ned body of natural rights. Once again, however, natural law
    was a source of enforceable positive rights only in conjunction with and
    through incorporation into the customary constitution. Rights under this
    constitution were drawn from a variety of sources, moreover, of which natural
    law was only one, and not necessarily the most important one at that. The
    most logical reading of the Ninth Amendment’s reference to “other” rights
    “retained by the people,” then, is to rights already or potentially secured
    within the customary constitutional tradition.» — Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review. // Oxford University Press, 2004, pp. 43-44

    P. S.
    Ssory for my English.


  5. 5 David Glasner March 28, 2022 at 12:03 pm

    Inal, Thanks for your reply. You need to read Ronald Dworkin (who from a left-liberal vantage point often echoes Hayek’s views about law and tradition, though he almost certainly was not intellectually indebted to Hayek). Judges, at least those operating in the common law tradition, routinely decide cases based on the moral arguments that are implicit in common law precedent. That is what judges do when they try to reach a just decision in a case. They work with the case law and the statutes and try to find the best decision in light of the legal material they have to work with. Justice Scalia openly expressed his hatred and disgust for the common law and wanted to convert judging and jurisprudence — the pursuit of justice — into a lowly form of historical lexicography and linguistic nitpicking.


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About Me

David Glasner
Washington, DC

I am an economist in the Washington DC area. My research and writing has been mostly on monetary economics and policy and the history of economics. In my book Free Banking and Monetary Reform, I argued for a non-Monetarist non-Keynesian approach to monetary policy, based on a theory of a competitive supply of money. Over the years, I have become increasingly impressed by the similarities between my approach and that of R. G. Hawtrey and hope to bring Hawtrey’s unduly neglected contributions to the attention of a wider audience.

My new book Studies in the History of Monetary Theory: Controversies and Clarifications has been published by Palgrave Macmillan

Follow me on Twitter @david_glasner


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