The Right has been working the 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 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 of restoring 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
Madison also wrote to Jefferson:
"My own opinion has always been in favor of a bill of rights; provided it be so framed as not to imply powers not meant to be included in the enumeration.... 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. 2. because there is great reason to fear that a positive declaration of some of the most essential rights could not be obtained in the requisite latitude. I am sure that the rights of conscience in particular, if submitted to public definition would be narrowed much more than they are likely ever to be by an assumed power.'' 5 Writings of James Madison, 271-72 (G. Hunt ed. 1904). See also 3 J. Story, Commentaries on the Constitution of the United States 1898 (1833). SOURCE:
http://caselaw.lp.findlaw.com/data/constitution Madison believed the People retained their unalienable rights and government was only permitted to act in those areas they were granted powers to act in.
Somehow something's gone terribly wrong. The 9th and 10th place the burden on GOVERNMENT to prove there's a legitimate social need before government can restrict individual rights. They do NOT place the burden on citizens to fight the government to establish a right which the 9th presumably already protects.
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 must legally establish them though the legislative process.... a process 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.
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.aspIn 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 appeals aimed at particular constituencies.
Tactically I believe that Democrats on the Senate Judiciary Committee need to rethink their game plan. Bush's nominees will be well coached and judicial ethics requires nominees not give any clear answers about any specific issue might come before the courts lest they not seem to be impartial. While the latter can provide ample room behind which to hide one's judicial philosophy, a closet Originalist can't dodge a more general discussion about the original intent of the 9th and 10th amendments. Sadly, the Democrats don't seem to have any more respect for the 9th than Scalia or Thomas.