By Tibor Machan: Snydicated columnist
Over the years I’ve paid attention to what the Supreme Court does, not as an expert but as a reasonably well educated lay person. One observation I’ve come away with is that if a case comes its way, the court either returns it to a lower court or offers a rather narrow ruling, although often with broad implications.
In turn, critics of the Supreme Court — often including those on it who issue a minority comment — refer to provisions of the Constitution and/or precedents with which the rulings being offered seem to conflict. A most notable criticism is that the court has invented some right that isn’t mentioned in the Constitution. This was repeated a lot about Roe v. Wade, where the court was charged with inventing a “right to privacy,” as well as in a previous case involving the attempt to ban contraceptives for sale in Connecticut. More recently, a Texas sodomy case drew criticisms claiming, once again, there is no right to privacy mentioned in the Constitution, therefore claiming that gays have the legal right to engage in sexual conduct in the privacy of their home is wrong.
Interestingly, though, the court ruled recently that the city of New London, Conn., has the authority to expand the power of eminent domain from taking for public use to taking for the purpose of economic development (and in the process for private use). This time critics lined up to denounce the court for its sanction of the violation of the right to private property. But is that correct? What the court did is to sanction expansion of eminent domain, which may imply such a violation but only if the Constitution lists such a right. But does it? It mentions private property in the Fifth Amendment, but there is no mention of any right to such property.
What is interesting about this is that many of the same critics who complain about the justices inventing rights in certain rulings seem to complain about the justices not upholding rights in others. Yet, in both kinds of cases there are no rights being mentioned in the Constitution, not at least explicitly. Instead the rights at issue in these cases are deemed by the justices who want to uphold them to be implicit, as well as by the critics who complain they haven’t be upheld.
The only way this can make sense is by taking one amendment in the Bill of Rights very seriously, an amendment that is nearly always neglected, namely the Ninth. This amendment states that “The enumeration in this Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Since the founders and the framers were not collectivists, “the people” must mean “the individuals who make up the citizenry of the country.” Indeed, it is these people who the Declaration of Independence claims possess “unalienable rights; (and) that among these rights are life, liberty and the pursuit of happiness.”
So the inference that there are rights we all have in America other than those explicitly listed in the Bill of Rights makes good sense. So those who complain about justices inventing them need to argue that the ones they claim were being invented aren’t among those non-enumerated ones mentioned in the Ninth Amendment. And when critics hold that the justices failed to uphold rights not explicitly mentioned, they too need to take the Ninth seriously and argue that it implies such rights, for example, the right to private property.
Of course, that would be an impossible task, but it is quite likely that the founders and framers knew this quite well. Their task wasn’t to list all the rights we have, only the ones under the greatest danger at the time. And they wanted to spell out the limited powers of government. Beyond what those limited powers entailed for purposes of government administration, the people would, of course, retain all the rights they had, namely to do anything they chose to do. And when a government measure would infringe on their rights to do what they choose to do, the courts would properly strike it down.
The trouble is that by now government has vast legal powers, sanctioned by the various courts, and any time the courts uphold some individual rights — or critics complain that they fail to uphold them — it all sounds quite arbitrary, both the pros and the cons being based not on the Bill of Rights but on personal likes and dislikes, on various moral or other convictions and lack thereof. But that’s not law but its very ruin.
It would be much better if the courts, all of them, really stuck to the Bill of Rights and what it implies. This is that we all have the right to do whatever we choose to do, provided we do not violate someone else’s rights. That is indeed the ideal of a free society that has been associated with America, and it would be best for the courts and its critics to stick to it.
Tibor Machan advises Freedom Communications, parent company of this newspaper. E-mail him at