Friday, October 12, 2012

An Interview with Justice Scalia

The Law Angeles Review of Books has published an interview with Justice Antonin Scalia. The interview focuses on his recent book Reading the Law (with Bryan Garner), which focuses on his interpretation of textualism. Readers might be interested in his view of the Ninth Amendment. The amendment reads:“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Here is the Justice’s view:

[A judge] should apply the Ninth Amendment as it is written. And I apply it rigorously; I do not deny or disparage the existence of other rights in the sense of natural rights. That’s what the framers meant by that. Just because we’ve listed some rights of the people here doesn’t mean that we don’t believe that people have other rights. And if you try to take them away, we will revolt. And a revolt will be justified. It was the framers’ expression of their belief in natural law. But they did not put it in the charge of the courts to enforce.

Look, when I was in law school, if you had asked me what the Ninth Amendment was and my life depended upon it, I would be dead! Nobody ever used the Ninth Amendment for anything. Now, since those who have been using substantive due process have finally acknowledged that it’s a contradiction in terms, it’s silliness, it’s converting a procedural guarantee into a substantive guarantee, they abandon that and they want to jump over to various other devices to enable the courts to do what the courts would like to do. One of those devices is the Ninth Amendment. But that’s not what the framers meant by it. All they meant by it was: I do not deny or disparage the right to abortion, for example. I know that it’s not one of the rights protected by the Bill of Rights but I don’t deny or disparage it. If people want to argue there is a natural right of a woman to have an abortion, that’s fine. The mere fact that its not included in the Bill of Rights doesn’t mean that it doesn’t exist. But just don’t ask me to enforce it.


| Permalink


Post a comment