Sunday, May 11, 2003

Original Intent?
This tidbit, by Supreme Court Justice Scalia, speaks volumes about what those who claim to adhere to original intent actually believe-
U.S. citizens tend to interpret the Constitution as giving them more power than the document actually provides. He went on to say that, "I will enforce the Constitutional minimums. But they are minimums. You've got to realize that."(hat tip Stuart)
Original intent folks like Scalia despise the judicial activism of the Warren Court and what they view as its establishment of new rights, not implied by the Constitution. Yet, what Scalia and others of his ilk conveniently ignore is the 9th and 10th Amendments and their protection of unenumerated rights. The plain text of these two Amendments makes clear that the government has only the rights enumerated in the Constitution, yet the people retain rights that are not enumerated. In other words, the people are not limited by the freedoms promised in the Bill of Rights. Scalia and others would chose to ignore not only the 9th and 10th Amendments and their penumbra of rights retained, but also the words and deeds of the Founding Fathers. That the US government is dependent upon the consent of the governed was a bedrock principle for Washington, Jefferson et al. Further, they viewed our rights as having been given to us by our Creator, not by our government. We then cede some liberty to our government. But it is clear that the Founders did not intend for the Constitution or the Bill of Rights to limit the scope of the rights people might exercise. They quite purposely included the 9th and 10th Amendments as protection against the government claiming rights not already enumerated to the people in the Bill of Rights.
Scalia and his cadre of original intent cronies adhere only to a conservative notion that if a right is not specificially enumerated in the Constitution it does not exist and avert their eyes from the protection of individual rights guaranteed by the 9th and 10th Amendments. But to see only what one likes in the Constitution is no different from the judicial activism they accuse the Warren Court of engaging in.


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