As the John Roberts confirmation hearing approaches, the debate on "activist judges" is heating up again. To my mind, Glenn Reynolds had the last word on this back in 2002 (and actually back in 1990). Findlaw also has a good review.
It's really very simple. The founding fathers explicitly anticiapted and rejected the argument that if a right is not enumerated in the Constitution that it doesn't exist. To this end they ratified the Ninth Amendment:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
It couldn't be clearer, and it never ceases to amaze me that the "intellectually dishonest" (as Reynolds puts it, and that is precisely what it is) strict-constructionist argument gets as much traction as it does because to accept it you have to completely ignore the ninth amendment. And indeed, that is exactly what the IDSC camp does. Robert Bork famously suggested that the Ninth Amendment is nothing but an "ink blot". I don't see how much "activist" a jurist can be than to say he's going to just ignore part of the Constitution because it conflicts with his ideology.
It amazes me that there is even one American who, after a comment like that, does not agree that running Bork out of town on a rail was the right thing to do. And yet there are tens of millions who hold him up as a symbol of liberalism run amok. Have none of them ever read the Ninth Amendment?
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
It's not that complicated. But given the Conservative capacity to bury its head in the sand it shouldn't surprise me too much that some people can look at those twenty-one words and see nothing but an inkblot.
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