More on the Living Constitution
Dahlia Lithwick apparently got quite a response to her plea for defenses of the "living Constitution." She sums them up here.
Along the same lines, here's an excerpt from an excellent email I received today:
Along the same lines, here's an excerpt from an excellent email I received today:
"The essential question in interpreting the Constitution
is whether it should be understood as a minimum or
maximum enumeration of principles. Originalists like
Scalia argue the latter, claiming that any rights not
specifically outlined in the document don't exist. But
the Ninth Amendment brilliantly anticipates and
preempts the originalist argument by insisting that the
Constitution be read as a statement of minimums,
which allows a much wider latitude for interpretation.
And anyway, when do you ever hear originalists
applying their own logic to the Second Amendment,
which quite clearly conditions the bearing of arms upon
the necessities of national defense (militias)? Wouldn't
a true originalist interpretation necessarily limit weapon
possession today to professional soldiers (modern
equivalent of militias)? More proof that "originalism" is
just another right-wing Trojan Horse."
posted by A.L. at 10:20 PM
3 Comments:
Your correspondant might perhaps have been well-served by reading Randy Barnett's paper Was the Right to Keep and Bear Arms Conditioned on Service in an Organized Militia? before putting pen to paper.
And it isn't the case that the people have no rights that aren't in the constitution. That is, as Tammy Bruce would put it, "the wrong way of thinking about it. [It assumes the constitution creates rights, but] [t]he constitution doesn't create any rights. You already have those rights; the constitution stops the government from taking them away". The bill of rights was not originally considered necessary, because the powers given to the federal government did not include the powers to invade most rights. See III J. Story, Commentaries, ยง1855; cf. Federalist 84. However, because of concerns that legislatures tend to seek to grow their powers in general, and the necessary and proper clause in particular, the bill of rights was added, at first merely to constrain the federal government (see Barron v. Baltimore) from abusing the rights of citizens in pursuit of its enumerated powers. These protections were later applied to the states, of course, via the 14th amendment (as opposed to by judicial fiat).
You have full scope of your rights, by right of birth - but the constitution explicitly protects those rights so important that they are fundamental to the concept of ordered liberty (I'm aware I'm very much hijacking Brandeis' words). Those balance of the rights which it does not protect are left to the people to decide through the democratic process.
And it isn't the case that the people have no rights that aren't in the constitution. That is, as Tammy Bruce would put it, "the wrong way of thinking about it. [It assumes the constitution creates rights, but] [t]he constitution doesn't create any rights. You already have those rights; the constitution stops the government from taking them away".
Seems like more of a semantic distinction than a substantive one.
Seems like more of a semantic distinction than a substantive one.
Nothing could be further from the truth.
If the Constitution creates rights, then the rights that can be found in it are the totality of all our rights. Therefore, because people are wont consider their rights to be expansive and near limitless, and if rights exist only by positive grant in the constitution, then no wonder people are afflicted with the mentality that anything that is wrong must be unconstitutional; no wonder they seek to rest ever more "liberties" on the due process clause!
But, our rights do not come from the constitution. See the ninth amendment (and, in general, the declaration of independence - "...they are endowed by their creator with certain unalienable rights", not
"...they are endowed by the magna carta...").
This is an important difference, because it leads to completely the opposite result: if there are rights not mentioned in the constitution, there is no impetus to read new rights into the document which are not there. With this mindset, instead of being (or attempting to be) a complete shopping list of all the people's rights, the constitution becomes instead the guarantor of the most crucial and critical freedoms from government invasion, and leaves the people to manage their other rights in the manner in which they see fit.
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