Tibor R. Machan
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 amended.

In his dissent Scalia wrote of his concern that the high court is proclaiming itself the sole arbiter of the nation's moral standards.

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 activism."

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 arbitrary governors).

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. Constitution.

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 government are.

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 understood.

Against Scalia it can be argued that although the idea of a living constitution is dangerous, so is the idea of a frozen one.

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 rulings.

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 anti-democratic.