Amendment IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Justice Antonin Scalia, who passed away suddenly and unexpectedly yesterday at the age of 79, has been both lauded and criticized for his fierce and unwavering “loyalty” to “the written Constitution.” Throughout his tenure on the bench he has been a staunch critic and opponent of the idea that the Constitution is a “living document,” whose meaning and application can, does and/or must change with and adapt to the times. Neither the original Articles, the original Bill of Rights, nor any subsequent Amendments are “open to interpretation;” they mean what they meant on the day they were written, nothing more, nothing less. Anything that was not on anyone’s mind in 1790 is beyond the bounds of what the Constitution requires, allows, and prohibits.
This rigid, stoic Constitutional “originalism” has been the core of conservative judicial philosophy for decades; Scalia was perhaps its most trenchant embodiment. Conservatives and Republicans have been congratulating themselves mellifluously for their purported loyalty and adherence to the text and “original meaning” of the Constitution, even though their approach to Constitutional Law both legally and politically has been no more consistent than that of the “activist judges” they decry. But there’s more than enough shoe-on-the-other-foot hypocrisy to go around; that’s not what I’m here to talk about.
Justice Scalia’s strict Constitutional “originalism” seemed, in the aggregate and now in retrospect, to be reserved for one particular kind of case: one in which a citizen or a group of citizens sought and asserted personal freedoms or individual liberties against the state. Scalia’s view has always been, in short, that “states have rights, people don’t.” Unless the “right” being sought or asserted is specifically, explicitly, precisely and by name, in one of the Amendments to the Constitution, the people have no right to do it or to be free from it, and they are therefore at the mercy of the state.
Indeed, another way to sum up Justice Scalia’s approach would be to take the Ninth Amendment itself, and delete the word “not”:
The enumeration in the Constitution, of certain rights, shall be construed to deny or disparage others retained by the people.
The Ninth Amendment, like the Tenth, has rarely been invoked in Constitutional jurisprudence. Both amendments operate more as truisms than as requirements or prohibitions of governmental action or forbearance. But its text would seem to directly contradict the notion of Constitutional “originalism” as applied by Justice Scalia and other “originalists” to cases of this variety. Scalia himself has essentially brushed aside the Ninth Amendment, effectively reading it out of the Constitution entirely:
"[The Ninth Amendment's] refusal to 'deny or disparage' other rights is far removed from affirming any one of them, and even further removed from authorizing judges to identify what they might be, and to enforce the judges' list against laws duly enacted by the people."
Troxel v. Granville, 530 U.S. 57, 91 (2000) (Scalia, J., dissenting). In other words, just because the Ninth Amendment says that there are other rights besides the ones enumerated in the Amendments to the Constitution, doesn’t mean that states can’t infringe and violate those rights, let alone that the Court can stop them from doing so. Which, if you think about it, means that there are no such rights. If individual liberties can’t be enforced against the state, then what good are they? What good is knowing they exist if nothing can be done to make sure the government, and/or an electoral majority, can’t deny them or take them away?
When interviewed on this topic, Scalia has stated that the Ninth Amendment was originally intended to be naught but an expression of the Founders’ belief in “natural law,” but “they did not put it in the charge of the courts to enforce” unenumerated rights of citizens against the state. Which may sound fine philosophically, but in practice it’s just another way of saying that we are all at the mercy of the state, and/or at the mercy of a political majority, both of which are free to systematically deny and violate our unenumerated rights.
At the end of the day, Scalia’s reading and understanding of the Ninth Amendment is internally contradictory, makes little sense, has no effective practical application, and comes across as an attempt to sweep an inconvenient part of the original Constitution under the carpet. The “written Constitution” to which Scalia was supposedly so “loyal” is one that omits or ignores the Ninth Amendment.
In last night’s Republican debate, Jeb Bush called Justice Scalia a “lover of liberty.” This characterization is hard to reconcile with Scalia’s explicit philosophy that liberty cannot be enforced against the state, and does not supersede the political whims of the majority of the moment. Scalia may have been many things, some of which he may be praised and criticized for at the same time, but he was not by any stretch of the imagination a “lover of liberty.” Indeed, “liberty” is something of which the late Justice was always deeply, highly, gravely suspicious.