Scalia's War On The Ninth Amendment. Even Some On The Right Found It Horrifying

[eniwetok]

It wasn't just liberal Dems who had contempt for Scalia. Here's a view from the libertarian right...

from http://fff.org/explore-freedom/article/constitution-3/

JUSTICE ANTONIN SCALIA is probably the smartest man on the Supreme Court. That makes him a living example of how bad political and philosophical premises can put great talent in the service of an evil cause, namely, the destruction of individual liberty.

when asked about a National ID card

According to an Associated Press report, he said, If you think its a bad idea to have an identity card, persuade your fellow citizens through the amendment process, rather than asking courts to make policy.

Scalia here is saying that the government legally may require everyone to carry an ID unless the people amend the Constitution to prohibit Congress from enacting such a measure. His point is painfully clear: the government can do anything unless the Constitution expressly forbids it. No surprise here; Scalia has long made his views known. They are horrifying nonetheless.

His views are based on an incorrect indeed, a pernicious notion of what the U.S. Constitution was and is supposed to be. In fact, he stands the Constitution on its head. Instead of a document that protects individual liberty by reining in government power, Scalia would make it one that protects government power by reining in individual liberty.


I suspect it's the bizarre construction of the Constitution that made room for such mischief. I've long maintained that the construction of Constitution is somewhat of a mess because basic assumptions were not clearly stated. If the Ninth had included a clear statement of rights like the Rights Of Man... we'd all be better off.

4: Liberty consists in the freedom to do everything which injures no one else; hence the exercise of the natural rights of each man has no limits except those which assure to the other members of the society the enjoyment of the same rights. These limits can only be determined by law.

5. Law can only prohibit such actions as are hurtful to society. Nothing may be prevented which is not forbidden by law, and no one may be forced to do anything not provided for by law.

http://avalon.law.yale.edu/18th_century/rightsof.asp

Instead as an after thought the Ninth Amendment was added...

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

This left room for the likes of Scalia to claim since these rights were not enumerated... the court could not rule to protect them... therefore new rights had to be added legislatively. Problem was the Constitution is also virtually reform-proof and now states with a mere 4% of the US population can block any reform. And this is what FFF meant that Scalia turned the Constitution on its head. Instead of a presumption of liberty... Scalia turned that into a presumption of government power over liberty... except for those right Scalia approved of.

[saturnsring]

1. good thing he's off the bench

[eniwetok]

5. Yup...

But we have to realize that judges like Scalia were part of a grand strategy on the part of the Right to hijack the federal judiciary to push through a political agenda... limiting social rights, promoting corporate personhood, expanding the power of wealth, restricting regulations etc... all under the guise of restoring the Constitution. Since these are key to the Right's political agenda we know the Right will keep pushing Scalia's every chance they get.

In a "democracy" like ours no cynical or self-serving intent can be marketed without some noble pretense. We see this with the Right's attempt at voter suppression... which is hidden behind a well-crafted smokescreen of trying to prevent voting fraud. Sure, we see through it but the True Believers on the right wing base eat up this slop. Dems have to do a better job at exposing the tricks of the Right... and they're just not up to it. For example the right has for 35 years used a Starve The Beast strategy. Have the Dems ever openly accused them of this? Have the Dems ever went after the GOPers for opposing Obamacare because back in the 90's they were convinced that ANY expansion of the federal safety net posed an existential threat to the GOP... that it might make an entire generation loyal to Dems that finally gave them health care reforms?

There's simply a high degree of cowardice on the part of Dem strategists and politicians to take on the Right even when it's clear they're being asswipes.

[meow2u3]

2. If Scalia had had his way, only the 2nd and 10th Amendments would stand

The rest of the Constitution would be nullified and replaced with his decrees. He was a judicial tyrant of the worst order.

[eniwetok]

3. Scalia Bastardized The 2ed

True to form, Scalia abused his power of his position to promote his favorite causes... and we see this with the Heller decision where he invents out of thin air a new right to own a firearm for self-protection out of the Second which clearly states the right protected on the federal level was simply connected to the militia. It's one of only 2 places in the Constitution that states a purpose and Scalia did everything he could to sweep it under the rug. We know since Bork that the social conservatives on the judiciary have been at war with the Ninth... fearing it will protect rights they don't want the People to have so Scalia certainly wasn't going to find any gun rights there.

Now as a gun owner I don't feel the right of responsible adults to own a firearm is connected to the Second... but the Ninth. I bought it 30 years ago because I backpacked alone. It hasn't seen the light of day in 15 years.

Just because I'm a gun owner doesn't mean I'm a Gun Nut. I support reasonable regulations that go beyond Brady. The lack of effective regulations for private sales and for those with serious mental health issues is scandalous. New laws allowing for no additional scrutiny for concealed carry and open carry are just insane. Remind me never to go to those states!

[eniwetok]

4. nullify the constitution?

I think Scalia generally stuck to his questionable interpretation of the Constitution... that of Original Intent and textualism. When it came to rights these were doctrines that allowed his restrictive view of the Constitution... that the Constitution was dead... not a living document. If a right were enumerated... he'd generally try to enforce it. If not... he'd try to limit the right to suit his own social conservative views. In negating the Ninth... he gave government more power than it was intended to have. But he went further to expand government powers beyond those delegated to that which were not restricted. That was a bastardization of a core assumption built into Constitution but never adequately stated.