Democrats Undermine Their Own Position in Fight For USSC

The Right has been working feverishly these past 25 years to turn back the clock in America. One key front in that effort is to hijack the federal judiciary. On the face of it, their position sounds somewhat reasonable. The doctrine of Originalism states that judges should interpret the Constitution as the Framers intended. Yet this doctrine is the fig-leaf that hides the Right's true intent to undermine the right to choose, other rights derived from the unenumerated right to privacy, as well the entire New Deal social safety net. For more on this do a web search for the "constitution in exile" movement.

With the Samuel Alito hearings now under way it's time to ask are Democrats really doing all they can to stop another radical right-wing justice like Scalia or Thomas from getting on to the USSC? Or is the Democrat's game plan fatally flawed?Are they concentrating on tactical issues on how to stop some nominees at the expense of a broader strategic effort to counter the Right? I believe they are. Missing from their efforts are attempts to move beyond their targeted constituencies in the pro-choice, pro-affirmative-action, pro-environment movements to educate the broader public on the dangers to the Constitution itself if radical Rightists take control of the Supreme Court. This strategic failure leaves the Right's claims to merely want to restore the Constitution unchallenged.

When it comes to the issue of rights... say the right of unenumerated privacy, Democrats have the immense weight of the 9th and 10th amendment on their side....

9th: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

10th: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

As to original intent of the Bill of Rights and particularly the 9th, James Madison wrote:

"It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow, by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution."
SOURCE: www.usconstitution.net/madisonbor.html#Sec5

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Madison wrote in a letter to Jefferson explaining why he didn't at first believe the omission of a Bill of Rights in the original Constitution was of much consequence:

"I have not viewed it in an important light --
1. because I conceive that in a certain degree ... the rights in question are reserved by the manner in which the federal powers are granted."
SOURCE: http://www.constitution.org/jm/17881017_bor.txt

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Since the Constitution was based upon the premise that government was only permitted specific powers granted by the People, Madison believed the rights of People would never be in jeopardy. The 9th amendment places the burden on GOVERNMENT to prove there's a legitimate social need before government can restrict individual rights. It does NOT place the burden on citizens to fight the government to establish a right which Constitution by its nature, bolstered by the explicit wording of the 9th amendment, already protects.

Sometime in our history this original intent was lost or found inconvenient.

Democrats seem to ignore this clear wording of the 9th amendment and the historical evidence on original intent, and seem preoccupied with stare decisis, those previous court rulings that "establish" rights... cases like Griswold v Connecticut and Roe v Wade.

Worst... Justices like Scalia want to further bastardize the Constitution. Scalia believes that unless a right is specifically enumerated... it does not exist. His only concession to expanding rights is to suggest those now deprived of rights can legally establish them though the legislative or amendment process.... something he knows can take decades if not generations. He believes it is not the role of the courts to rule that governments have unjustly violated rights.

If his views on rights aren't extreme enough... Scalia also has no use for the 10th amendment. Instead of government only having powers that have been granted it, Scalia believes it is free to do anything that is not prohibited. If no one thought of prohibiting the government from issuing a national ID card... Scalia believes it's permissible. Here's a critique of Scalia from the Right by Sheldon Richman:

"Scalia here is saying that the government legally may require everyone to carry an ID unless the people amend the Constitution to prohibit Congress from enacting such a measure. His point is painfully clear: the government can do anything unless the Constitution expressly forbids it. No surprise here; Scalia has long made his views known. They are horrifying nonetheless.

His views are based on an incorrect — indeed, a pernicious — notion of what the U.S. Constitution was and is supposed to be. In fact, he stands the Constitution on its head. Instead of a document that protects individual liberty by reining in government power, Scalia would make it one that protects government power by reining in individual liberty."

SOURCE: http://www.fff.org/freedom/fd0206c.asp

In the long run Democrats have made a strategic blunder by failing to expose the hypocrisy in the doctrine of Originalism and counter it with a similar over-arching philosophical approach to Constitutional law. They need to educate the public and inoculate them against the Right's game plan. Yet even when Kerry had the ear of the nation during the 2004 presidential debates, he stayed with traditional Democratic appeals aimed at particular Democratic constituencies and Republican women who want to protect the right to choose.

Tactically I believe that Democrats on the Senate Judiciary Committee need to rethink their game plan. Alito will be well coached and his interactions with sympathetic senators will be choreographed for the cameras. He can also hide behind judicial ethics which requires nominees not give any clear answers about any specific issue might come before the courts lest they seem not to be impartial. While the latter can provide ample room behind which to hide his true judicial philosophy or political bias, a closet Originalist can't dodge a more general discussion about the original intent of the 9th and 10th amendments.

Sadly, Democrats don't have much more respect for the 9th than Scalia or Thomas... and it's putting all our rights in danger.


ulTRAX


For primary historical material on the origins of the Bill of Rights please visit this outstanding site: http://www.constitution.org/dhbr.htm