Supreme Disappointments
Where do individual rights come from? You’d think that if anyone knows the answer, it would be America’s top judges.
But you would be wrong.
On this basic question conservative and liberal judges alike are locked into a crucial error about America’s bedrock constitutional principle: individual rights.
The error consists in regarding rights as gifts from society that can be revoked at will, through the political process.
In truth, rights are not social gifts but political principles based on facts of reality. These facts don’t bend to the so-called will of society. That’s why 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 judges don’t ask this question anymore, because they don’t think it’s objectively answerable.
Instead, and broadly speaking, judicial conservatives only ask what privileges American society granted the individual at the time of constitutional ratification. To conservatives, it’s meaningless to ask whether the right to liberty in fact includes, say, the right to use contraception (a question 18th-century Americans may have answered incorrectly). Their only concern is whether society at that time meant to permit this action. 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, in obedience to the “social will.”
Judicial liberals reject this conservative view of social values frozen in time, like a sepia-toned snapshot of bygone days. Instead, liberals see constitutional values evolving like a motion picture, constantly updating to reflect current social mores. 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). Their only concern is whether the “will” of today’s society favors permitting such actions. 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.
But conservatives and liberals are both wrong about rights.
It is not true that rights are grants 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 then 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 the Founders’ generation or modern times favor such rights violations.
To their discredit, today’s judges — conservatives and liberals alike — have all but abandoned this judicial 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.
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