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Who decides our "rights"?

By Robert S. Sargent Jr.
web posted September 16, 2002

The rejection of Judge Priscilla Owens to the 5th Circuit Appeals Court makes Roger Pilon's Cato Institute's Policy Analysis: "How Constitutional Corruption Has Led to Ideological Litmus Tests for Judicial Nominees" (August 6, 2002) especially timely. This has become a huge problem and Mr. Pilon offers a solution.

Once conservatives understand the Constitution "...both its limits on power, through enumeration, and its limits on the exercise of power, through both enumerated and unenumerated rights," then conservative judicial nominees can "...defend our first principles...(and seize) the moral high ground...(and) once judicial nominees are able to show the Schumers of the world that they take both individual liberty and majoritarian tyranny seriously, they will be in a good position to turn the tables...(on those most responsible for corrupting the Constitution)."

Today's conservatives, Mr. Pilon argues, do not have a proper understanding of the fundamental principles that were understood by the Framers and Founders of the Constitution. "Those are our natural rights, the rights we had against each other, prior to the creation of government..." He writes: "They are not terribly difficult principles. Justice Bushrod Washington, stated them simply in 1823 in Coryfield v. Coryell, considered at the time to be the authoritative interpretation of Article IV's Privileges and Immunities Clause. Contending that it would be 'more tedious than difficult' to enumerate the rights protected by the clause, Washington offered illustrative categories, such as 'protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness'"

The drafters of the Fourteenth Amendment also understood this. "They understood that we are born with our rights, we do not get them from government." To protect these rights they wrote into the Amendment a Privileges and Immunities Clause that applied to the states "which was meant to be the font of rights against the states."

"Without a sure grasp of the subject, (conservatives) simply flail at the judicial lawmaking that discovers (Constitutional) rights, whether correctly or not, thinking it perfectly proper if the same rights are created by legislatures." By illustration, he cites Justice Scalia's dissent in Troxel v. Granville (2000). "In Troxel, the grandparent visitation case out of Washington State, the Court found an unenumerated right of fit parents to direct the upbringing of their children, a right that trumped the state law at issue which had authorized state judges to grant visitation rights to grandparents and others, over the objections of the parents. In dissent, Scalia said that although the parental right was among...the unenumerated rights retained pursuant to the Ninth Amendment, 'the Constitution's refusal to "deny or disparage" (such) rights is far removed from affirming any of them, and even farther removed from authorizing judges to identify what they might be, and to enforce the judge's list against laws duly enacted by the people.'" "There in a nutshell," Mr. Pilon writes, "is the judicial deference that has robbed the Constitution of its rich natural rights heritage...the two great fonts of rights -- property, broadly understood, and contract."

He takes conservatives to task for ignoring these unenumerated rights and "...limit constitutional rights to those fairly clearly 'in' the document...Thus for conservatives, if a right (is) not clearly 'in' the Constitution, it (does) not exist. What conservatives of the judicial restraint school have to come to grips with, then, is the full richness of the Constitution, including its natural rights foundations...for as the Ninth and Fourteenth Amendments make clear, the rights 'in' the Constitution are not limited to those the document plainly enumerates..."

In my opinion, the analysis is wrong.

Let's start with the Ninth Amendment. "The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people." Evidently Mr. Pilon sees this as a source of rights. Raoul Berger, in his Government by Judiciary points out that the Ninth Amendment merely says that "...what is retained is excluded from the federal jurisdiction...the great object in view is to limit and qualify the power of government by excepting out of the grant of power those cases in which the Government ought not to act." As Justice Stewart said in his dissent of Griswold v. Connecticut, "The Ninth Amendment...was framed by James Madison and adopted by the States simply to make clear that the adoption of the Bill of Rights did not alter the plan that the Federal Government was to be a government of express and limited powers, and that all rights and powers not delegated to it were retained by the people and the individual states." While I agree with the results of Troxel, I don't believe the Ninth Amendment gives judges the right to decide who has visitation rights. The people, through their state representatives, "retain" that right.

The Privileges and Immunities Clause also gives Mr. Pilon a "font" of rights. In Article IV, Section 2, it says, "The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states." What this Clause means runs the gamut from Robert Bork ("...we do not know what the clause was intended to mean") to Justice Samuel Miller in the Slaughter House Cases, where he interpreted the Clause as referring to rights already protected, to Justice Bushrod Washington and Roger Pilon who interpret it as a source of unenumerated rights. As usual the simplest, most common sense interpretation is correct. In A.T. Southworth's The Common Sense of the Constitution of the United States, he explains, "A person who goes from one state to another...automatically acquires the privileges of the state into which he goes." And the Fourteenth Amendment, Section I, says, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States..." Clearly this means that any rights as a United States citizen the newly freed slaves had, were not to be curtailed by the states. The only reason I see the clause as being a "font" of rights is to discover rights that protect an agenda.

Finally, the property and contract laws that Mr. Pilon categorizes as natural rights, are in the Constitution. Article I, Section 10 states, "No State shall...pass any...law impairing the obligation of contracts." And property rights are protected by the Ninth Amendment simply because it's an area that Congress is not empowered to intrude. As far as the states go, the Fourteenth Amendment says that no State shall "...deprive any person of life, liberty, or property, without due process of law." If we have a right to life and a right to not be incarcerated without due process, then we have a right to property, and no state can take it away without due process. So all these other natural rights, whatever they are, (according to Bushrod Washington there are so many it would be "tedious" to enumerate them) must be found by Justices.

Granted, Mr. Pilon distinguishes natural rights from "welfare" rights, such as: "rights to education, health care, subsidies, import restraints, and the like," but when Justices define rights, there is nothing to stop them from declaring that one-person, one-vote, or privacy, or even education and health care are fundamental, natural rights, that all civilized democracies should protect. This is exactly what we've been getting from liberal Justices for 70 years. Scalia is right: those rights "retained" by the people should be decided by the people. While I share Mr. Pilon's concern over the nomination process, I see no solution in Mr. Pilon's argument.

Robert S. Sargent, Jr. can be reached at rssjr@citcom.net.

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