Posted on March 6, 2005

by

Daniel Clark

In a recent appearance on Meet the Press, Sen. Joseph Biden (D, Del.) said he would oppose the prospective elevation of Justice Antonin "Nino" Scalia to the position of Chief Justice of the Supreme Court. "I would oppose him because of his methodology," he explained, "the way he interprets the Constitution; i.e., he thinks there are no such things as unenumerated rights in the Constitution, which fundamentally alters the way in which you read the liberty clause of the Fourteenth Amendment and a whole range of other things. I think he's a brilliant, decent man who I think misreads the Constitution, in my view."

It's not every day that you hear a Democrat senator take such a reasonable tone in his opposition to a conservative judge. Their usual m.o. is to slime an appointee with unfounded accusations of bigotry, or else to float ominous warnings that he is going to turn America into a police state. It's good to see that Sen. Biden is rejecting those tactics in regard to Scalia. Nevertheless, his criticism is without merit.

Justice Scalia does not believe that there are no such things as unenumerated rights. It's just that he doesn't believe that federal judges have the power to create them. To put it in his own words, from his dissenting opinion from the 2000 Troxel v. Granville decision, "the Constitution's refusal to 'deny or disparage' other rights is far removed from affirming any one of them, and even farther removed from authorizing judges to identify what they might be, and to enforce the judges' list against laws duly enacted by the people."

What Biden wants are judges who are willing to assume a positive based on the absence of a negative. From this viewpoint, if the Constitution does not say not X, then the Supreme Court is free to rule that X is true. The possibility of the Constitution not saying not X, and having not X still be factually true doesn't enter into this argument. The Court assumes absolute discretion in deciding the existence or nonexistence of X.

To illustrate this, let's use the example of a bill being considered in Hawaii, that would criminalize the eating of dogs and cats. Let's say, for the sake of argument, that this bill passes, and is signed into law. A group of committed cat-eaters then challenges the law, saying that they have a fundamental right to eat cats, although that right is not enumerated in the Constitution. How must the justices rule?

Scalia would conclude that the Constitution does not authorize him to declare an unenumerated right to cat-eating, and that therefore the state of Hawaii has the power to ban the practice in accordance with the Tenth Amendment. His detractors might illogically deduce from this that he thinks there are no such things as unenumerated rights, but that clearly isn't the case, as shown in the following hypothetical.

This time, let's assume that the Hawaiian bill does not pass, but that a lawsuit is subsequently filed by opponents of cat-eating, on the basis that no such right appears in the Constitution. According to Scalia's rules, the cat-eaters win this one. The Ninth Amendment forbids the Court from using the Constitution's silence on the issue as a means of denying or disparaging people's claim to such a right. Therefore, the power to ban cat-eating is not delegated to the federal government under the Constitution, which means that the power is reserved to the states. Since there is no ban in Hawaii, the feline feast can carry on, regardless of whether Antonin Scalia personally approves of it or not.

Following the Biden philosophy, state laws are all but irrelevant. If the justices felt they should legalize cat-eating, they could just declare it to be an unenumerated right, and overturn any laws that disagree. Then they could justify their decision by pointing to the absence of any such right from the Constitution. What better evidence of an unenumerated right can there be than its lack of enumeration?

This is the path the Supreme Court has taken in its rulings on abortion, which is why Sen. Biden is so concerned about reversing the trend. Constitutionally, there are only two conclusions that could have been reached in Roe v. Wade, and the Court arrived at neither one of them. It could have ruled, on the one hand, that the human unborn are people, therefore their right to life is protected by the Fifth and Fourteenth Amendments. On the other hand, the justices could have declined to make a determination about the humanity of the unborn, and claimed that the Constitution is silent on the matter. In this case, they must defer to the states under the Tenth Amendment, and allow each state to write its own abortion laws as it sees fit.

It will probably surprise and disappoint some conservatives to learn that Justice Scalia holds the latter of these two positions. He explained this in a 1997 speech to the Manhattan Institute for Policy Research, in which he said, "[The Constitution] means what it meant when it was written. But it is a flexible Constitution. ... You want a right to abortion? Adopt it the way most rights are adopted in a free society; pass a law. You don't want a right to abortion? Pass a law the other way." This echoed his dissenting opinion in Planned Parenthood v. Casey, where he remarked about the Supreme Court's involvement in the issue, "We should get out of this area, where we have no right to be, and where we do neither ourselves nor the country any good by remaining."

If Scalia wouldn't take a constitutionally valid opportunity to ban abortion outright, one might wonder why a pro-abortion senator would feel threatened by him, but it's really not much of a mystery. If the Supreme Court were to revisit Roe, and Scalia's argument carried the day, that decision would still be overturned.

According to Scalia's philosophy, a state could claim an unenumerated right to abortion, and he would be powerless to deny that claim. This is not to say that he would agree that such thing existed as a right to abortion; rather, he recognizes that the Constitution does not empower him to declare whether an unenumerated right exists or not.

Nor would he assume the power to proclaim the existence of a right that does not appear in the document. The Texas state law that was the subject of Roe prohibited abortion, and there is nothing in the Constitution that contradicts it. By Scalia's way of thinking, that means the law should have been upheld; therefore Roe must be reversed. Abortion advocates would then have to go from state to state in an effort to repeal anti-abortion laws, while opponents would likewise be trying to enact prohibitions in those states where the practice remained legal.

It's no wonder, then, that Sen. Biden specifically objects to Justice Scalia's views on unenumerated rights. The last thing that supporters of legal abortion want is for the issue to be publicly debated in detail, in legislatures all across America. That was part of their advantage in letting the judiciary do the dirty work in the first place.

If the Supreme Court cannot base its rulings on legal non-entities, then actual, written laws will regain primacy. For example, the word "liberty" in the Fourteenth Amendment would be confined to what definition its context will allow. In order to agree with its constitutional context, "liberty" must assume its narrower definition, as a freedom from slavery or physical confinement. This is so, because to interpret it by its broader meaning as a synonym for freedom in general would nullify much of the bill of rights, and institute virtual anarchy.

However, the proposition that a justice can read that amendment through the prism of "unenumerated rights" opens up a wide array of new opportunities. The kind of justice that Biden promotes would take the broad definition of "liberty" and then decide when it does and does not apply, on a case-by-case basis. That way, there can be a liberty right to abortion, but not a liberty right to eat cats, with no constitutional explanation of how they differ.

This is merely a manner of buttressing a capricious, unconstitutional decision by lending it a flimsy facade of constitutionality. A liberal justice can claim that a right to practically anything is enumerated in the Fourteenth Amendment, and when challenged, explain that the reason you can't see it there is because it's one of those unenumerated Fourteenth Amendment rights.

So Biden is technically correct when he says that Scalia thinks there are no such things as unenumerated rights in the Constitution, because by definition, there can't be. To claim otherwise would be like saying there are unlisted numbers in the phone book. Nobody qualified to serve as Chief Justice would pretend to believe such nonsense, but that's what it will apparently take to win Biden's endorsement.

So much for Sen. Biden's appearing reasonable.

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