In the Ninth with Scalia
I ran across former Supreme Court justice Antonin Scalia’s disdain for the Ninth Amendment over ten years ago.
I knew then and there that something was amuck in the world of jurisprudence.
What you are about to read is Scalia’s own words to expand the meaning of the Constitution to fit future times and circumstances. Compare it with the rest of this blog and its resources and decide for yourself
FRANZEN (an interviewer): Some would be surprised to see that you actually argue against strict construction. In fact, you include strict construction in your list of thirteen fallacies. Most people think textualism, originalism, and strict construction are sort of a trinity.
SCALIA (his response): I think strict construction gives a bad name to textualism. My approach is to give the text a reasonable meaning that it bore when it was adopted. For instance, if you interpret strictly the First Amendment, it would be the case that Congress could censor handwritten letters, because, strictly, it covers only freedom of speech and of the press. A handwritten letter is neither speech nor press. Come on, that’s absurd, that’s not the meaning of the First Amendment. The First Amendment reasonably understood is a guarantee of freedom of expression, whether handwritten or oral, or semaphore or burning a flag.
Was Scalia smarter than everyone else in the room or was he a sleight of hand charlatan?
In this interview, he is splitting fence rails as good as one can.
FRANZEN: The Ninth Amendment is one of the articles of the Constitution that is oftentimes perplexing to jurists. What should a judge do, when a statute or constitutional provision references something outside of its language? For example, in the Ninth Amendment, there is reference to rights retained by the people, but no enumeration of what those rights are.
SCALIA: 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.
Look, when I was in law school, if you had asked me what the Ninth Amendment was and my life depended upon it, I would be dead! Nobody ever used the Ninth Amendment for anything. Now, since those who have been using substantive due process have finally acknowledged that it’s a contradiction in terms, it’s silliness, it’s converting a procedural guarantee into a substantive guarantee, they abandon that and they want to jump over to various other devices to enable the courts to do what the courts would like to do. One of those devices is the Ninth Amendment. But that’s not what the framers meant by it. All they meant by it was: I do not deny or disparage the right to abortion, for example. I know that it’s not one of the rights protected by the Bill of Rights but I don’t deny or disparage it. If people want to argue there is a natural right of a woman to have an abortion, that’s fine. The mere fact that its not included in the Bill of Rights doesn’t mean that it doesn’t exist. But just don’t ask me to enforce it.
His problem WAS the Ninth Amendment. He needed to dismiss it as ‘heady meaninglessness’ because it directly contradicted his core argument. I will even go so far as to argue that the use of the word Constitution for the document contradicts the core of his argument in both literal and figurative ways.
The Catholic Court
Very few US Supreme Court Justices have been Catholic, but today an overwhelming number of them are.
Scalia set up the mindset and mission for this current block of justices.
Religion is a great contributor to a civilization’s culture — until it gains a stranglehold on power. Then, it almost never can restrain itself. Christianity argued ferociously on both sides of slavery — before America was created, during its founding, during the framing of the Constitution, during the early years of the country, and throughout the Civil War and well beyond. The Thirteenth Amendment itself just put slavery back into the Constitution. Now, the ‘inferior’ people would be criminals and many states would make these people permanent second-class citizens when they left prison by taking away their right to vote.
Scalia gave this soon-to-be ultra-right court a simple sophists’ rhetorical collection of tricks for removing the liberalism of the US Constitution so that it can return many people to second-class status by taking away their unenumerated rights in the Ninth Amendment.
Jesus said “love your enemies” and yet he beat people in the temple with a scourge, Roman flagrum, or what will later be called a ‘cat o’ nine tails’.
Rights and respect have always put religions in a tough corner. Religions and people in general have lived by one common rule or policy — rights are best if there are more for me and less for you.
Was Justice Scalia right to pitch the Ninth Amendment? In his call for the original Constitution, he threw out the Ninth and the Tenth Amendments. He expands the Freedom of Speech and of the Press into the Freedom of Expression, but he also constricts the Right to Privacy out of the Bill of Rights even though it is inherently foundational and fundamental in many of them.