ARI Supreme Court's crucial error...

[galtgulch]

Supreme Disappointments

Neither McCain nor Obama will nominate judges who understand the Constitution’s basic principle of individual rights.

By Thomas A. Bowden

No matter who wins the presidency--and with it, the power to appoint Supreme Court justices--America’s judiciary will remain locked into a crucial error that corrupts their interpretation of America’s bedrock constitutional principle: individual rights. That error consists in regarding rights as gifts from society, with judges as diviners of the so-called social will.

The most fundamental question a Supreme Court justice must answer is what in fact do the individual’s rights to life, liberty, property, and happiness include? Only then can he determine if a certain law or government action is securing or violating those rights. But no justice asks this question anymore because none believes it objectively answerable.

Instead, and broadly speaking, judicial conservatives ask what privileges did American society at the time of ratification grant the individual. So when modern legislators make criminal offenses out of abortion, contraception, homosexuality, and other acts said to be frowned upon centuries ago, conservative judges feel duty-bound to stand aside and do nothing. To conservatives, it’s meaningless to ask whether the right to liberty in fact includes the right to use contraception (a question 18th-century Americans may have answered incorrectly). The only question is whether society at that time meant to permit this action.

John McCain has pledged to appoint judges in this conservative mold.

Judicial liberals reject this worship of bygone days. Instead, liberals see constitutional values evolving like a motion picture, constantly updating to reflect current social mores. So when Congress declares federal dominion over every nut, bolt, and button of American industry, liberal judges feel duty-bound to stand aside and do nothing--not because earlier Americans intended to allow such controls, but because modern Americans want them. To liberals, it’s meaningless to ask whether the right to liberty in fact includes freedom of trade and contract (a question that a majority of Americans may be answering incorrectly today). The only question is whether the “will” of today’s society favors permitting such actions.

Barack Obama has pledged to appoint judges in this liberal mold.

But conservatives and liberals are both wrong about rights. It cannot be true that rights come from society. The very concept of a right identifies the actions you can take without anyone’s permission. Rights are not social privileges but objective facts, identifying the freedoms we need to live our lives--whether a majority in society agree or not. This is why the Founding Fathers dedicated their new government to the protection of each individual’s already-existing rights to life, liberty, and the pursuit of happiness.

Thus, the Fifth and Fourteenth amendments forbid the government to deprive you of “life, liberty, or property” (except when you have violated someone else’s rights, and even here the government must follow due process, such as holding a trial). The Ninth Amendment safeguards all “rights” not listed elsewhere. These principles encompass all the innumerable actions required for your survival and happiness over a lifetime--the right to make a contract, earn a profit, build a house, make a friend, speak your mind, and so on.

Because the Constitution is the “supreme Law of the Land,” judges are duty-bound to strike down statutes that violate rights. This is not improper “judicial activism” but the robust, constitutional power of judicial review.

Judges must never bow to social opinion, historical or current, when exercising judicial review. For example, laws that institutionalized government discrimination against blacks in military service and voting deserved to be struck down, even if political majorities in both the Founders’ generation and modern times favored such rights violations.

To their discredit, today’s judges--conservatives and liberals alike--have all but abandoned this essential safeguard of our liberties.

The arch-conservative Robert Bork once declared that Ninth Amendment “rights” carry no more meaning than an accidental inkblot on the constitutional parchment. And according to Justice Antonin Scalia, there’s nothing in the Constitution “authorizing judges to identify what [those rights] might be, and to enforce the judges’ list against laws duly enacted by the people.” As for life, liberty, and property, government can smash them at will, if society so wishes. “Does [the Constitution] guarantee life, liberty or property?” asks Justice Scalia rhetorically. “No, indeed! All three can be taken away. . . . It’s a procedural guarantee.”

Judicial liberals don’t dispute that a judge must bow to the “social will”--they simply divine it differently. As one liberal Justice declared, the Constitution “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”

While conservatives and liberals squabble about whether society permits you this action or that, they are defaulting on their sacred constitutional duty of judicial review.

America desperately needs a new generation of judges who understand that their function is not to uphold social opinions but to protect our rights.

Thomas A. Bowden is an analyst at the Ayn Rand Center for Individual Rights. Mr. Bowden is a former lawyer and law school instructor who practiced for twenty years in Baltimore, Maryland. The Ayn Rand Center is a division of the Ayn Rand Institute and promotes the philosophy of Ayn Rand, author of “Atlas Shrugged” and “The Fountainhead.”

Copyright © 2008 Ayn Rand® Center for Individual Rights. All rights reserved.

[BaalChatzaf]

The ninth amendment begs the question of what is a right and what is not. Does a person have a right to fart in an empty elevator? One could argue either way. Does one have a right to whistle at a funeral? One could argue either way. Should either "right" be legally protected in court?

Ba'al Chatzaf

[Judith]

The ninth amendment begs the question of what is a right and what is not. Does a person have a right to fart in an empty elevator? One could argue either way. Does one have a right to whistle at a funeral? One could argue either way. Should either "right" be legally protected in court?

Ack. RAISES the question, or LEADS TO the question, or anything else, but not BEGS the question. Somehow that mis-usage has become rampant during the past few years, and I feel like a one-person fire-fighting force trying to put it out. Begging the question has a specific meaning, and that ain't it.

Judith

[Selene]

Evening:

Since the world is now officially perfect, Judith is correct. Furthermore, it is one of the most rampant fallacies in use today.

However, the Ninth Amendment [The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.] has quite a history and quite a few historical conflicts as to how it was originally written, which words were purged and how unhappy Virginia was about the entire debate.

The Federalists opposed having a Bill of Rights.

Recently, however, the Amendment has been construed to be positive affirmation of the existence of rights which are not enumerated but which are nonetheless protected by other provisions.

Hence the idiotic penumbra of rights in Griswold v. Connecticut.

The 9th and 10th are not used extensively by the Supreme Court.

Adam

[Chris Grieb]

The ninth amendment begs the question of what is a right and what is not. Does a person have a right to fart in an empty elevator? One could argue either way. Does one have a right to whistle at a funeral? One could argue either way. Should either "right" be legally protected in court?

Ack. RAISES the question, or LEADS TO the question, or anything else, but not BEGS the question. Somehow that mis-usage has become rampant during the past few years, and I feel like a one-person fire-fighting force trying to put it out. Begging the question has a specific meaning, and that ain't it.

Judith

Judith; Good for you! Thank for the point you make.

[Chris Grieb]

Objectivists under the lead of Henry and Ericka Holzer used the Ninth Amendment in the challenges they did to the draft. As I remember Joan Kennedy Taylor and her husband also tried to revive the Ninth.

I hope Institute of Justice and other legal groups will use the Ninth in the fight against Obama's National Service proposals.

Yes, Obama will have a National Service proposal. His in-coming chief of staff Rahm Emanuel in a recent book got misty eyed with a proposal of his for National Service.

[BaalChatzaf]

Judith; Good for you! Thank for the point you make.

Justice Goldberg assumed a right to privacy and then concluded that the 9th amendment implied a right to privacy. Petito princicipi.

One can "prove" anything that one assumes.

Ba'al Chatzaf

[Philip Coates]

troll ignored.

[Brant Gaede]

troll ignored.

Contradiction. Also blatant argumentum ad hominem.

Phil, you need to reinvent yourself. Objectivism doesn't need teaching, it needs improving. Your wheels are going around and around on the ice of Orthodox Objectivism and like that not going anywhere.

Yours is a noble soul, but you aren't passing it on. That's the least you can do.

--Brant

Edited November 10, 2008 by Brant Gaede