Supreme Disappointments
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The Immigration Debate
by The Editors | April 17, 2017
Charlie Hebdo Two Years Later: Will America Continue to Protect Free Speech?
by Steve Simpson | January 07, 2017
Free Speech Is a Right, Not a Political Weapon
by Steve Simpson | December 06, 2016
One Small Step for Dictatorship: The Significance of Donald Trump’s Election
by Onkar Ghate | November 17, 2016
Overturning Citizens United Would Be a Disaster for Free Speech
by Steve Simpson | September 06, 2016
New Book: Defending Free Speech
by The Editors | July 26, 2016
Defending Free Speech
by Steve Simpson | July 02, 2016
How U.S. Attorneys General Are Like Chinese Censors
by Steve Simpson | July 01, 2016
Standing up for Free Speech
by The Editors | June 17, 2016
Is the First Amendment Enough?
by Steve Simpson | March 22, 2016
Free Speech Under Siege
by Steve Simpson | March 25, 2015
Freedom of Speech or Tyranny of Silence?
by The Editors | January 21, 2015
Free Speech and the Battle for Western Culture
by Yaron Brook | January 21, 2015
Freedom of Speech: We Will Not Cower
by Onkar Ghate | January 07, 2015
Gutting the First Amendment
by Steve Simpson | July 17, 2014
The Myth about Ayn Rand and Social Security
by Onkar Ghate | June 19, 2014
The Campaign Finance Monster That Refuses to Die
by Steve Simpson | June 11, 2014
The “End the Debt Draft” Campaign
by Don Watkins | March 18, 2014
End the debt draft
by Don Watkins | March 13, 2014
Abortion Rights Are Pro-life
by Leonard Peikoff | January 23, 2013
A Liberal Ayn Rand?
by Onkar Ghate | November 02, 2012
Ryan, Rand and Rights
by Don Watkins | August 17, 2012
Repairing Lochner’s Reputation: An Adventure In Historical Revisionism
by Tom Bowden | Fall 2011
Why Should Business Leaders Care about Intellectual Property? — Ayn Rand’s Radical Argument
by Adam Mossoff | November 30, 2010
Elena Kagan: Could She Defend the Constitution’s Purpose?
by Tom Bowden | July 20, 2010
Capitalism: Who Needs It — Ayn Rand and the American System
by Yaron Brook | June 09, 2010
Were the Founding Fathers Media Socialists?
by Don Watkins | March 01, 2010
Justice Holmes and the Empty Constitution
by Tom Bowden | Summer 2009
Nationalization Is Theft
by Tom Bowden | November 07, 2008
Supreme Disappointments
by Tom Bowden | November 03, 2008
Deep-Six the Law of the Sea
by Tom Bowden | November 20, 2007
After Ten Years, States Still Resist Assisted Suicide
by Tom Bowden | November 02, 2007
No Right to “Free” Health Care
by Onkar Ghate | June 11, 2007
The Rise and Fall of Property Rights in America
by Adam Mossoff | May 16, 2007
Free Speech and the Danish Cartoons, a Panel Discussion
by Yaron Brook | April 11, 2006
The Fear to Speak Comes to America’s Shores
by Onkar Ghate | April 04, 2006
The Twilight of Freedom of Speech
by Onkar Ghate | February 21, 2006
The Cartoon Jihad: Free Speech in the Balance
by Christian Beenfeldt | February 10, 2006
The Faith-Based Attack on Rational Government
by Tom Bowden | June 27, 2005
Supreme Court Should Uphold Rights, Not Majority Sentiment in Ten Commandments Cases
by Tom Bowden | February 23, 2005
Campaign Finance Reform Attacks Victims of Corruption
by Onkar Ghate | December 26, 2003
Thought Control
by Onkar Ghate | April 22, 2003
A Supreme Court Overview
by Tom Bowden | January 01, 2000
Blacklists Are Not Censorship
by Tom Bowden | March 23, 1999
Health Care is Not a Right
by Leonard Peikoff | December 11, 1993
The Age of Mediocrity
by Ayn Rand | April 26, 1981
Censorship: Local and Express
by Ayn Rand | October 21, 1973
A Nation’s Unity
by Ayn Rand | October 22, 1972
Of Living Death
by Ayn Rand | December 08, 1968
The Wreckage of the Consensus
by Ayn Rand | April 16, 1967
Racism
by Ayn Rand | September 1963
POV: Man’s Rights; The Nature of Government
by Ayn Rand | 1963

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Supreme Disappointments

by Tom Bowden | November 03, 2008

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.

About The Author

Tom Bowden

Analyst and Outreach Liaison, Ayn Rand Institute