This is the second in a series of posts examining some of Justice Scalia’s statements in a long interview with Jennifer Senior in New York magazine. This one looks at Scalia’s approach to the 9th Amendment, which is very much like Robert Bork’s in that it would read the amendment right out of the Constitution.
So are there things in the Constitution you find stupid? I remember Judge Bork saying that there were few people who understood what the Ninth Amendment meant, as if it was partially covered by an inkblot.
You know, in the early years, the Bill of Rights referred to the first eight amendments. They didn’t even count the ninth. The Court didn’t use it for 200 years. If I’d been required to identify the Ninth Amendment when I was in law school or in the early years of my practice, and if my life depended on it, I couldn’t tell you what the Ninth Amendment was.
That’s quite an admission, don’t you think? And his claim here is completely irrelevant, especially to an originalist. So what if the courts didn’t pay attention to the 9th Amendment for 200 years (not true, by the way, though it was mostly ignored for over a century)? An originalist should only care about what the 9th Amendment actually meant to those who wrote it. And about that, there is little doubt. James Madison made it absolutely clear in his address to Congress in 1789 when he proposed the Bill of Rights that the clause that eventually became the 9th Amendment was intended to avoid having future governments think that any right not specifically enumerated was open for regulation or prohibition.
It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration, and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the general government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the 4th resolution.
That clause is what became the 9th Amendment. The position taken by Scalia, Bork and others is absolutely untenable. Their position is that while the 9th Amendment clearly says that the enumeration of certain specific rights should not be viewed as meaning the government has free reign to violate any unenumerated right, that doesn’t mean the courts have the power to prevent the government from violating those unenumerated rights. But this is clearly nonsensical. It would make the 9th Amendment mean, in essence, that there are unenumerated rights that are of equal importance as the ones we’ve enumerated and the government cannot violate them…unless it chooses to do so. It would make the 9th Amendment absolutely meaningless, as Bork did when he declared it nothing more than an “ink blot” on the Constitution. Their position is the very position that the 9th Amendment was intended — yes, originally — to eliminate forever. Their position is strongly anti-originalist.