No matter who wins the presidency–and with it, the power to appoint Supreme Court justices–America’s judiciary will remain locked into a crucial error that corrupts their interpretation of America’s bedrock constitutional principle: individual rights. That error consists in regarding rights as gifts from society, with judges as diviners of the so-called social will.
The most fundamental question a Supreme Court justice must answer is what in fact do the individual’s rights to life, liberty, property, and happiness include? Only then can he determine if a certain law or government action is securing or violating those rights. But no justice asks this question anymore because none believes it objectively answerable.
Instead, and broadly speaking, judicial conservatives ask what privileges did American society at the time of ratification grant the individual. So when modern legislators make criminal offenses out of abortion, contraception, homosexuality, and other acts said to be frowned upon centuries ago, conservative judges feel duty-bound to stand aside and do nothing. To conservatives, it’s meaningless to ask whether the right to liberty in fact includes the right to use contraception (a question 18th-century Americans may have answered incorrectly). The only question is whether society at that time meant to permit this action.
John McCain has pledged to appoint judges in this conservative mold.
Judicial liberals reject this worship of bygone days. Instead, liberals see constitutional values evolving like a motion picture, constantly updating to reflect current social mores. So when Congress declares federal dominion over every nut, bolt, and button of American industry, liberal judges feel duty-bound to stand aside and do nothing–not because earlier Americans intended to allow such controls, but because modern Americans want them. To liberals, it’s meaningless to ask whether the right to liberty in fact includes freedom of trade and contract (a question that a majority of Americans may be answering incorrectly today). The only question is whether the “will” of today’s society favors permitting such actions.
Barack Obama has pledged to appoint judges in this liberal mold.
But conservatives and liberals are both wrong about rights. It cannot be true that rights come from society. The very concept of a right identifies the actions you can take without anyone’s permission. Rights are not social privileges but objective facts, identifying the freedoms we need to live our lives–whether a majority in society agree or not. This is why the Founding Fathers dedicated their new government to the protection of each individual’s already-existing rights to life, liberty, and the pursuit of happiness.
Thus, the Fifth and Fourteenth amendments forbid the government to deprive you of “life, liberty, or property” (except when you have violated someone else’s rights, and even here the government must follow due process, such as holding a trial). The Ninth Amendment safeguards all “rights” not listed elsewhere. These principles encompass all the innumerable actions required for your survival and happiness over a lifetime–the right to make a contract, earn a profit, build a house, make a friend, speak your mind, and so on.
Because the Constitution is the “supreme Law of the Land,” judges are duty-bound to strike down statutes that violate rights. This is not improper “judicial activism” but the robust, constitutional power of judicial review.
Judges must never bow to social opinion, historical or current, when exercising judicial review. For example, laws that institutionalized government discrimination against blacks in military service and voting deserved to be struck down, even if political majorities in both the Founders’ generation and modern times favored such rights violations.
To their discredit, today’s judges–conservatives and liberals alike–have all but abandoned this essential safeguard of our liberties.
The arch-conservative Robert Bork once declared that Ninth Amendment “rights” carry no more meaning than an accidental inkblot on the constitutional parchment. And according to Justice Antonin Scalia, there’s nothing in the Constitution “authorizing judges to identify what [those rights] might be, and to enforce the judges’ list against laws duly enacted by the people.” As for life, liberty, and property, government can smash them at will, if society so wishes. “Does [the Constitution] guarantee life, liberty or property?” asks Justice Scalia rhetorically. “No, indeed! All three can be taken away. . . . It’s a procedural guarantee.”
Judicial liberals don’t dispute that a judge must bow to the “social will”–they simply divine it differently. As one liberal Justice declared, the Constitution “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”
While conservatives and liberals squabble about whether society permits you this action or that, they are defaulting on their sacred constitutional duty of judicial review.
America desperately needs a new generation of judges who understand that their function is not to uphold social opinions but to protect our rights.
Thomas A. Bowden
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