In an earlier column, I wrote: If tomorrow California passed a law forbidding people from eating cheese on Tuesdays, that law would be perfectly constitutional. It was one of the mildest and most defensible sentences in my article. In his editorial The Strict Constructionists Are Dead Wrong, (11/18) Harry Schmidt argued that such a law would be unconstitutional. Liberals are very rarely this concrete, and this hypothetical cheese law provides a good focus for the debate.
The question is whether the cheese law is constitutional, not whether it is a good law. People may disagree as to whether a law preventing cheese consumption is a good law. These citizens vote to elect state representatives, state senators, and state governors. The congressmen, responsible to their constituents, will decide whether to enact said cheese law, and their governor has the option to veto it.
There are specific processes, at both the state and federal level, which determine whether a law is good or bad. The United States Supreme Court, which only has the very narrow job of determining whether a law is constitutional, is not involved.
If a state law prohibiting cheese eating on Tuesdays was unconstitutional, as Schmidt suggests, on the grounds that it is a privilege long recognized at common law as essential to the orderly pursuit of happiness by free men, so would an extraordinary number of state laws. Californias law prohibiting Ephedra consumption would be unconstitutional. So would its ban on alcohol consumption by 18—20 yearolds. Most, if not all, of Californias labor laws would be forbidden. If you cannot prevent a person from eating cheese on Tuesdays, how can you prevent an employer from paying his employee $5 an hour?
An activist Court that finds an imaginary right to cheese eating in the Constitution is not terribly upsetting because few Americans are bothered by their neighbors eating of cheese. However, what if an activist Court finds an imaginary right to privacy that includes on-demand early-term abortions (Roe v. Wade)? Unlike the cheese example, abortion involves a conflict of rights: the womans right to privacy versus her childs right not to be aborted. The country is bitterly split over which right dominates.
The Founding Fathers anticipated there would not always be a consensus on whether a law was good or bad, and in these instances intended to leave the decision to the states, not to nine appointed Philosopher-Kings on the Supreme Court.
It is surprising to hear proponents of judicial activism argue that they are supporting personal rights.
Schmidt, along with many liberals, believes that the Ninth Amendment prohibits state governments from violating non-enumerated (imaginary) rights. But listen to what James Madison had to say:
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 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.
Madison was referring only to the federal government. He did not intend to give justices a carte blanche to overturn state laws.
Further, the Ninth Amendment is extremely vague and difficult to interpret. A broad interpretationsuch as Schmidtsis tantamount to allowing a Supreme Court Justice to strike down any state law for any reason, provided he makes up an imaginary unenumerated right first.
As Robert Bork said during his confirmation hearings, I do not think you can use the Ninth Amendment unless you know something of what it means. For example, if you had an amendment that says Congress shall make no and then there is an inkblot and you cannot read the rest of it and that is the only copy you have, I do not think the court can make up what might be under the inkblot if you cannot read it.
In one of the worst decisions in the history of the judiciary, Kelo v. New London, the Supreme Courts activist judges held that a government was allowed to seize private property for use by another private entity. Stevens, Kennedy, Souter, Ginsberg, and Breyerthe Courts reliable liberalssupported this abuse of eminent domain. The Courts conservativesRehnquist, Scalia, Thomasdissented, as did maverick OConnor.
Unlike the right to cheese eating, which is mentioned nowhere in the Constitution, the right to private property is mentioned in specific and unequivocal terms. According to the Fifth Amendment, No person shall be deprived of property, without due process of law; nor shall private property be taken for public use, without just compensation.
Activist judges are not interested in protecting personal rights. They are interested in having the ultimate authority to decide whether laws are good or bad. If we have such an oligarchy of nine, there is no need for state governments. There is no need for Congress. There is no need for a president, except to appoint a new Philosopher-King each time one kicks the bucket.
The Founders divided power between state and federal governments in order to protect the rights of the people. They divided power among the three branches of the federal government in order to protect the rights of the people. They wrote a constitution in order to protect the rights of the people.