Unspun Logo

Scalia & the Constitution

Posted by Rick · May 22nd, 2004 · 2 Comments

As part of the research for a motion I’m writing, I’ve been reading City of Chicago v. Morales (1999) 527 U.S. 41 [119 S.Ct. 1849; 144 L.Ed2d 67; 1999 U.S.Lexis 4005].

Justice Scalia — not unpredictably — turns the United States Constitution on its head in his dissenting opinion. (Thank goodness, for now, it’s a dissenting, e.g., losing opinion.)

The Constitution of the United States was written for the purpose of placing limitations upon the government of the newly-birthed country.

Among the chief points at issue were how much power to allow the central government[.] “The Charters of Freedom: Constitution of the United States,” The National Archives Experience.

Some of those present at the constitutional convention were concerned enough about the potential for this government to re-create the abuses of the English king against whom they’d fought for independence that they refused to ratify unless several amendments were made to the resulting Constitution. These amendments have become known as “The Bill of Rights.”

These days, when courts, legislatures, or ordinary American citizens talk about issues or situations that are “unconstitutional,” what they normally mean is that the issue or circumstance concerns something that is expressly protected by the first 10 amendments to the Constitution, this Bill of Rights. Only occasionally do issues arise that we call “constitutional” issues which capture the attention of ordinary Americans that relate to the Constitution itself; e.g., to the Constitution strictures upon government not related to Amendments.

Since the days of the Bill of Rights, we, the People, have seen fit to explicitly spell out certain rights which were previously only implied. In only one instance did our country make the mistake of adopting an amendment that restricted a right — the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes was prohibited by the 18th Amendment, ushering in “Prohibition” — and this mistake was corrected less than fifteen years later by the 21st amendment, restoring these freedoms. (That the 18th Amendment was an utter failure is partly indicated by the fact that it was enacted in 1919 — right before “the roarin’ 20s”!) Other than this, amendments have been made to the Constitution only when it became necessary to remind the government that certain rights were protected.

These rights were not newly protected. They were merely moved from “implied” to “express” status.

And what’s my justification for stating this? I mean, after all, doesn’t the Supreme Court, and specifically Justices Scalia and Thomas, occasionally complain about “the creation of new rights”?

Yes, they do.

In the Morales case I mentioned above, for example, Justice Scalia’s dissent states,

The entire practice of using the Due Process Clause to add judicially favored rights to the limitations upon democracy set forth in the Bill of Rights…is in my view judicial usurpation. Morales, supra, at p. 85.

In complaining about the plurality opinion in Morales, Scalia amplifies his mistake by saying that they have gone “far beyond any substantive-due-process atrocity we have ever committed,”

by actually placing the burden of proof upon the [government] to establish that loitering is not a “fundamental liberty.” [The plurality] never does marshall any support for the proposition that loitering is a constitutional right. Morales, supra. [Underlined emphasis added; non-underlined emphasis in the original.]

What Scalia misses is that the plurality does not need to “marshall any support for…[such] a constitutional right.” It is fair to presume such a right. It is fair to place the burden of proving the non-existence of such a right upon the government.

But why? On what authority do I say this? Am I depending upon my interpretation of history? Am I relying upon facts I’ve read indicating the Founders’ extreme distrust of government? Am I relying upon their grudging allocation of powers to the government they finally endorsed? Am I reading between the lines of those portions of the Constitution which deliberately divided the power of the government among competing branches commonly known as “Executive,” “Legislative” and “Judicial”?


In stating that Justice Scalia has things bass-ackwards here; that the burden of proof rightly is laid upon the government; that citizens have all sorts of rights — some of which may be “fundamental” and which it is right to force the government to show either don’t exist or are not fundamental — my justification for saying this is nothing less than the Bill of Rights, without which the Constitution would never have been ratified, itself.

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Comprising the 10th Amendment, the last one of the Bill of Rights, these words indicate the Founders belief that the rights expressly spelled out in the Constitution of the United States and the Bill of Rights itself did not encompass all the rights citizens of the United States hold. The 10th Amendment could be paraphrased to say,

Just because we, the Founders of this country and authors of this Constitution specifically stated that the people have certain rights, don’t take that to mean that we think these are the only rights. Don’t think we deny the existence of other rights. As a matter of fact, don’t even think that we necessarily think these are the most important rights! Our specific statements that certain rights exist does not disparage any other rights.

And to make this more clear, Merriam-Webster’s Unabridged Dictionary gives the definition of “disparage” as,

1 a obsolete to lower or degrade especially by marriage to one socially inferior b : to lower in esteem or reputation : diminish the respect for <the Labor party, in turn, is being carried further to the left … in an effort to disparage the Tory party — New Republic>

Don’t let “obsolete” mislead you, either. Look at the quote used to demonstrate the meaning of “disparage.” This meaning of “disparage” — the one I show you here — is the one that was in force during the time of the writing of the Constitution of the United States and the Bill of Rights.

Today, too many people are accepting of the mistaken belief that we, the People, do not have any rights unless they are spelled out in the Constitution.

This view, endorsed by a man who shows disrespect even when righting his legal opinions (e.g., “The plurality thinks much of this Fundamental Freedom to Loiter, which it contrasts with such lesser, constitutionally unprotected, activities as doing (ugh!) business”), and who is closely aligned both intellectually and socially with the President who said “there ought to be limits to freedom,” is exactly the opposite of what the Founders of this country intended.

Strict constructionism, indeed. Scalia’s methodology is more rightly considered Strict Destructionism.

America needs to remember why it was that we came into being. We need to recall what it was that our forebears fought for, why they established this country and just who and what the Constitution was intended to control.

Categories: Constitutional Issues


2 responses so far ↓

  • 1 Mark // May 22, 2004 at 9:15 am


    While I agree with your position that Scalia normally maintains this view that rights exist only if spelled out explicitly in the Constitution — there was one notable exception to his pattern of writing.

    Scalia had historically viewed with contempt and disdain virtually any argument put forth on the basis of the Equal Protection Clause of the 14th Ammendment. In Bush v. Gore, Scalia twisted like a pretzel to interject an Equal Protection argument into an area that no legal scholar (that I am aware of) of either party thought was logical or plausible.

    This complete reversal of a lifetime of writing and behavior shows that Scalia’s views, while inarguably arcane and archaic, are also very situational.

  • 2 Adrian // Nov 1, 2004 at 10:09 pm

    By the way, Scalia is horrendously disengenuous. One needs to keep that in mind in making sense out of his pseudo-theoretical commentary.

    [Editor’s Note: You’re risking a ban from the site here. In the course of our email discussions, I encouraged you to comment if you had something to add to the conversation. I know you to be an intelligent person, even though I don’t often agree with your point of view. But from the fact that you’ve repeatedly posted one-liners with essentially no content (and, in one case, not even a “one-liner,” but a “two-worder”!) your posts appear no different than the spammers who use my site to boost their own traffic flow. I’ve already deleted one of your more vacuous posts. Keep it up and you will be banned.]

Leave a Comment