“The death penalty? Give me a break. It’s easy. Abortion? Absolutely easy. Nobody ever thought the Constitution prevented restrictions on abortion. Homosexual sodomy? Come on. For 200 years, it was criminal in every state.” Justice Scalia made these remarks last week at the American Enterprise Institute.
Justice Scalia has always described himself as a textualist. What does that mean? That means he puts himself in the shoes of the drafters of the Constitution and interprets it as they would have 200 years ago. Does anyone else have a problem with this? Slavery was acceptable 200 years ago. Women could not vote 200 years ago. Does that mean if a slavery case came before the Court, Justice Scalia would vote to uphold slavery? By his own logic, yes.
Justice Scalia mocks those who think the Constitution should be interpreted under present societal norms. Justice Scalia believes we should hold the country to the world view of the 18th century. He desires to interpret our present day laws as though they were in force 200 years ago. You cannot do that! It was a different time then. Put aside the argument of whether it was a better time. That is not the world we live in and you cannot hold the people and laws of today accountable to the societal norms of 200 years ago.
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” That is the entire text of the Ninth Amendment to the United States Constitution. James Madison drafted this amendment because he knew it would be impossible to list all rights. So, he, quite ingeniously, came up with the Ninth Amendment which allows for other rights which are not specifically listed in the Constitution, to be given the protection of the Constitution. Maybe Justice Scalia’s copy of the Constitution does not include this amendment.
We all have unenumerated rights. These rights are retained even though they are not written down. These rights are interpreted by judges. If judges do not believe in unenumerated rights, it then follows that the only rights we would ever have were those rights listed in the Constitution. Women would still not be able to vote and black people could still be owned as property. The Ninth Amendment does not give us any rights; it simply ensures that the unenumerated rights we already have are not overlooked.