| Thursday, March 31, 2005
Demystify the Ninth
A 'living' Constitution
might well be dangerous, but so can a frozen one
Ethics professor at Chapman University &
adviser to Freedom Communications
In a recent talk, U.S. Supreme Court Justice Antonin Scalia
criticized his fellow justices for making law, a role he
believes belongs to the legislature or the people themselves.
Justices, he argued, are there to interpret the U.S.
Constitution and this they must do by reading it as it was
intended back when it was framed and when it was later
In his dissent Scalia wrote of his concern that the high
court is proclaiming itself the sole arbiter of the nation's
The charge Scalia has leveled at his colleagues - five of
them, the majority who ruled for abolition of the death
penalty for juveniles and the mentally impaired - is the
substance of the general criticism usually labeled "judicial
This view decries it when the court rules as if there exist
rights that are not explicitly mentioned or enumerated within
the U.S. Constitution.
One of the most famous of these unenumerated rights is the
right to privacy, and the majority of the court has ruled in
several recent cases that various state laws violate this
right and are, therefore, unconstitutional and invalid laws.
In his recent public talk, Justice Scalia argued that the
idea of a living constitution is essentially wrongheaded
because it leaves the country without a firm basis of law by
which it can be governed. Instead of a stable set of
constitutional principles, justices have come to make laws
based on their "personal policy preferences," thus undermining
the classic doctrine of the rule of law (as opposed to that of
The case Scalia makes has a good deal going for it because
it is indeed part of the theory of politics in the USA that
the role justices play does not include making laws, only
interpreting the Constitution.
Yet, there is a problem here because Justice Scalia ignores
the Ninth Amendment to the U.S. Constitution, the one that
states unequivocally that aside from rights enumerated in that
document, the people have others as well.
The Ninth reads: "The enumeration in this Constitution, of
certain rights, shall not be construed to deny or disparage
others retained by the people."
So, while this does not sanction any kind of loose,
"living" constitutional doctrine, it does make clear reference
to rights that aren't explicitly listed in the U.S.
What could those rights be? Pretty much to do everything
and anything the government isn't authorized to prohibit.
Indeed, the point of the U.S. Constitution does not appear to
be to spell out our rights in particular, other than to spell
out for emphasis of some of the most crucial ones. It is,
rather, to state what the strictly limited powers of
As to whether this authorizes the U.S. Supreme Court to
strike down state and federal legislation that permits the
execution of juveniles or the mentally ill, the situation is
complicated. It is arguable, however, that one role of the
court is to spell out the logical meanings of terms within the
Constitution for our own times, meanings that have clearly
undergone some rational evolution.
If it is determined, for example, that children and the
mentally disabled lack the full capacity of adult humans, this
could reasonably require interpreting provisions of the U.S.
Constitution and other laws accordingly.
And that is just what seems to lie behind recent rulings.
For example, the young, who in our day aren't permitted to
enter into contracts, to marry on their own or to vote, would
probably not warrant being judged guilty of crimes exactly as
they were when certain nuances in understanding what human
beings are had been overlooked or were not clearly
Against Scalia it can be argued that although the idea of a
living constitution is dangerous, so is the idea of a frozen
Reasonable development in the meaning of the terms in the
fundamental laws of the society is to be expected and should
not be thwarted in the US Supreme Court's deliberations and
Those who protest that this is anti-democratic need to
consider that the founders were not pure democrats by a long
shot - just consider the Electoral College, which is blatantly