Justice Scalia on Judicial Activism

A while ago Justice Antonin Scalia criticized his fellow justices at the U. S. Supreme Court for making law, a role he believes belongs to the legislature or the people themselves. Justices, he argued, are there to interpret the US 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 a dissenting opinion Justice Scalia wrote,


The court says in so many words that what our people’s laws say about the issue does not, in the last analysis, matter: ‘In the end our own judgment will be brought to bear on the question of the acceptability of the death penalty….’ The court thus proclaims itself sole arbiter of our nation’s moral standards.


9th Amendment d


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 criticism is deployed whenever the court rules as if there existed rights that are not explicitly mentioned or enumerated within the US Constitution.


Supreme Court justice Antonin Scalia – not a fan of judicial activism

Photo credit: Mark Avery/Orange County Register


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, invalid laws.

In his 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 when some legislation is challenged through the courts (and reaches the US Supreme Court). The living constitution idea is, indeed, destructive of the rule of law and of democracy itself because it encourages arbitrariness, the departure from governance by law toward governance according to the justices’ own convictions.


dvd__the_living_constitution_by_kiwi_rgb-d33il5n (1)A screen shot from Scalia’s nightmares

Image credit: 21st Century Distribution Corp.


Rights Retained by the People

Yet, there is a problem here because Justice Scalia ignores the Ninth Amendment to the US Constitution, the one that states unequivocally that aside from rights enumerated in that document, the people have others, as well. The Ninth states:


“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 US Constitution, rights that we nonetheless possess.

What would be those rights? Pretty much to do everything and anything the government isn’t authorized to prohibit. Indeed, the point of the US Constitution does not appear to be to spell out our rights in particular, other than to spell out for emphasis some of the most crucial ones. It is, rather, to state what the strictly limited powers of a government are.

When the amendments that constitute the bill of rights were debated at the convention of 1787, one of the questions was how all the people’s rights could be included in the constitution. An actual listing of these rights was rightly considered impractical. Rights are not just something that is generously granted by the State, and this amendment serves as a reminder of this fact. The 9th amendment obviously poses special problems to the Supreme Court, which it can however not evade.

As to whether this authorizes the US 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.

Just as in physics the term “atom” no longer logically means exactly what it meant 300 years ago, so in political theory and jurisprudence the term “human being” could reasonably require some updating. If it is found, for example, that children and the mentally disabled lack the full capacity of adult humans, this could reasonably require interpreting provisions of the US Constitution and other laws accordingly.

And that is just what seems to lie behind some 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 or petrified 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 and framers were not pure democrats by a long shot—just consider the Electoral College, which is clearly anti-democratic.


Image captions by PT


Dr. Tibor R. Machan has recently been appointed senior fellow at the Heartland Institute (Arlington Heights, IL) and has worked as a Hoover Institution research fellow, is Professor Emeritus, Department of Philosophy, Auburn University, Alabama, and has held the R. C. Hoiles Endowed Chair in Business Ethics and Free Enterprise at the Argyros School of Business & Economics, Chapman University from 1997 to 2014.




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One Response to “The Forgotten Ninth Amendment”

  • Kiisu:

    The charge Scalia has leveled at his colleagues … is the substance of the general criticism usually labeled “judicial activism.” This criticism is deployed whenever the court rules as if there existed rights that are not explicitly mentioned or enumerated within the US Constitution.

    The Constitution -as written- imposed tight limits on the power, scope, and ability of the Federal Government to do things to me or for me … and that was a _very_ good thing.

    Unfortunately, due to Wickard v Filburn (and other judgements), the strictures and limitations the Constitution imposed on the Federal Government have long since vanished.

    The limited Federal Government of my great-grandfather’s day is now a massive juggernaut that, like the “blob” of B movie fame (combined with a perverse genie that grants wishes to some at the expense of others) continues to expand as it voraciously consumes ever more of the nation’s wealth.

    Squeezing the bloated genie-blob back into its lamp is going to be very “interesting” … the genie-blob no matter how fat remains ravenously hungry, it abhors diets, and its cheer-leaders are continually enriched by the crumbs that fall from its maw.

    Invoking the necessary political-incantation to squish the genie-blob down to size (to stuff it back in its lamp) requires wholesale changes in all three branches of government; axe-stroke reductions in the size, power and scope of the bureaucracy; and a huge attitudinal shift by a significant fraction of the citizens.

    Will that happen?

    Not likely.

    After the corruption of Rome … its transformation from Republic to Empire, after the Roman genie-blob savaged and ravaged the Roman citizenry … when did Rome recover?


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