Are Dems Undermining Their Own Position in Fighting For USSC?

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.asp

In 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.

If you were on the Committee and hoped to expose his views.

Welcome to DU!
:hi:

Thanks for the welcome.

Good question. But if I wanted to cut to the meat of the matter... I'd ask Alito just what he thought the purpose of the 9th was... if not place the burden of proof on government before restricting ANY rights? Could he provide an exhaustive list of non-enumerated rights? Why should his list should be considered the basis of law over right's others might list?

Dems on the committee.

Nothing to lose by letting them know the questions we the people want answered.

During the Robert's hearings I phoned the offices of every Dem plus Spector. But if it's a legitimate flaw in the Dem's game plan... we really need to get the word out. Unfortunately even groups like MoveOn have no strategic plan to change the debate... and only tactically try to defeat one nominee at a time.

but those aren't the real terms of the debate here. Amendments 9 & 10 aren't the real problems- ever hear of the 'states' rights' doctrine? That covers those and the Right happens to like them a lot too.

The center of bitter argument in this country for 60 years has essentially been the 14th Amendment, Section 1 primarily but the (Section 1-supporting) other Sections as well: ex-felon vote disenfranchisement statutes, defaulting on federal debt, racial segregation, gender rights, religious discrimination, i.e. the whole caste system that exists/existed/is in decline. The 'signing statement' thing Bush did to the McCain torture ban bill is probably technically a Section 5 violation, if you define torture as violations of Equal Protection and/or Due Process guarantees (Section 1).

As for Roe v Wade, the right to privacy (i.e. extra-constitutionality of aspects of peoples' lives) is an individual right; 14th Amendment application was necessary to make it a meaningful, exercisable, right. IOW, the logic of RvW is that the right to privacy gives U.S. women the right to undergo abortions. 14th Amendment Due Process rights are invoked in RvW to make the legal providing of abortions into a right.

'Originalism' is the Right winger idea that we all live in the post-Revolutionary War society of 1790 or so. 'Strict Constructionism' is the Right wing constitutional doctrine that all post-Civil War constitutional Amendments don't really exist (well, there is some ambiguity about the 13th Amendment in the doctrine), i.e. that we live in the society of 1830-1865 or 1866.

The rest of us don't own time machines of the sort.

If we're trying to prevent another Scalia from getting on the USSC... then both the 9th and 10th are BIG issues. It's the 9th that SHOULD be the basis for the right to privacy and the right to choose.

If the 9th already covers unenumerated rights then it is rule to interpret the rest of the constitution... and that places the burden of proof on government to provide a legitimate rationale to restrict rights. But both the Dems and GOP have ignored this interpretation and both favor a much more limited interpretation. The Dems ignore the 9th and concentrate on stare decisis, rulings that established new rights, and the Right doesn't even want to acknowledge that.

Scalia seems to have some radical views on the 10th.

and its very clear, strong message about the right to privacy for the individual.


Without it we are nothing. We are like all of those "terrible" un-free countries we heard about in grade school.

If the Right's assault on rights isn't bad enough... some are going after the principle of one person one vote.

during his last confirmation hearing- and went ahead and ruled for a corporation where he had a financial interest. The very one he promised to recuse himself on.

That's profoundly unethical.

CASE CLOSED.

If the Dems don't filibuster this guy- on those grounds alone- then they don't deserve to be the majority party- and I'm not the only one out there who believes that.

We concentrate on election results and forget that some 45-65% of the voting age population (VAP) sit out elections. Our perspective is so warped that Reagan's election in 1980 was called a landslide when he got about 26% of the VAP. Off year congressional elections might see the ruling party represent a mere 18-19% of the VAP. No, felon disenfranchisement laws don't explain what's going on since estimates I've seen are that those laws cover some 2-3% of the VAP.

Listening to the Alito hearings and the current NPR discussion... I think the weakness of the Dem's game plan is painfully obvious. What are the Dems going to use as a basis for rejecting him? That he wasn't responsive enough?

Dems need a a strategy to protect the courts that doesn't rely on defense... but offense. Here's a repost from a thread I posted yesterday that went nowhere.....

Some here have suggested that in order to protect the constitutional rights of privacy and the right to choose, we should pass amendments to guarantee these rights.

My position is why try to amend the Constitution when we know there will be immense resistance and those amendments may never be ratified? And if in the meantime Roe is overturned.... then what? What's the fallback position?

Why are the Dems/Left always on the defensive on these issues? It's because they rely on stare decisis... court rulings like Roe v Wade instead of finding a broader source of rights in the Constitution itself.

I think the Dems/Left have to go on the offensive. It's time to dust off the ninth amendment which says: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." and claim the BILL OF RIGHTS... not stare decisis as the basis for such basic rights as privacy and the right to choose.

To go the 9th amendment route covers more with EXISTING LAW. The amendment route dooms us to forever be on the defensive, ever hoping we can pass amendment after amendment to meet the Right's latest threats... if we can pass any at all.

As part of this strategy we need to reframe the debate to put the Right on the defensive. If the Right doesn't like the right to privacy or to the right to chose, let THEM pass an amendment to repeal the BILL OF RIGHTS!!! No I'm not afraid they can get away with it.