Al's Opinions

President Bush has named John Roberts to replace retiring Justice Sandra Day O’Connor on the Supreme Court. There have been many attempts to expose or explain Judge Roberts’ views of the constitution to the public. I am more concerned with the views of President Bush, who has not only named Judge Roberts but will almost certainly name at least one other person to replace another retiring justice. I am particularly interested in Mr. Bush’s choice of his favorite justice: Antonin Scalia. If Chief Justice William Rehnquist retires during Bush’s term of office, Bush will probably nominate Justice Scalia to be Chief Justice.

Mr. Scalia does not believe that the constitution is a “living” document. It is a document to be interpreted according to the specific text of the constitution, including the original meaning of the text at the time of its adoption. An important consequence of this interpretation is the set of rights that we, as a free people, should enjoy. Let’s start with the Bill of Rights, or the first ten amendments to the constitution:

Article [I.]
Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of speech, or of
the press; or the right of the people peaceably to assemble, and to petition the
Government for a redress of grievances.

Article [II.]
A well regulated Militia, being necessary to the security of a free State, the
right of the people to keep and bear Arms, shall not be infringed.

Article [III.]
No Soldier shall, in time of peace be quartered in any house, without the
consent of the Owner, nor in time of war, but in a manner to be prescribed by
law.

Article [IV.]
The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated, and
no Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.

Article [V.]
No person shall be held to answer for a capital, or otherwise infamous crime,
unless on a presentment or indictment of a Grand Jury, except in cases arising
in the land or naval forces, or in the Militia, when in actual service in time
of War or public danger; nor shall any person be subject for the same offence to
be twice put in jeopardy of life or limb; nor shall be compelled in any criminal
case to be a witness against himself, nor be deprived of life, liberty, or
property, without due process of law; nor shall private property be taken for
public use, without just compensation.

Article [VI.]
In all criminal prosecutions, the accused shall enjoy the right to a speedy and
public trial, by an impartial jury of the State and district wherein the crime
shall have been committed, which district shall have been previously ascertained
by law, and to be informed of the nature and cause of the accusation; to be
confronted with the witnesses against him; to have compulsory process for
obtaining witnesses in his favor, and to have the Assistance of Counsel for his
defence.

Article [VII.]
In Suits at common law, where the value in controversy shall exceed twenty
dollars, the right of trial by jury shall be preserved, and no fact tried by a
jury, shall be otherwise re-examined in any Court of the United States, than
according to the rules of the common law.

Article [VIII.]
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted.

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

Article [X.]
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.

In summary, the first ten amendments to the constitution give us the following rights:

Freedom of Speech
Freedom of Religion
Freedom to assemble and petition the government
Freedom as people, not necessarily as individuals, to bear arms
Freedom from having soldiers quartered in our homes
Freedom from unreasonable or secret searches and seizures by the police
Right to indictment by grand jury
Right not to be tried twice for the same offence
Right not to testify against oneself
Right not to be jailed or fined without a trial
Right against seizure of property without just compensation
Right to a speedy trial
Right to trial by impartial jury
Right to counsel
Right to confront and examine witnesses
Freedom from excessive bail
Freedom from cruel and unusual punishments

Strict constructionists, such as Scalia and Bush, argue that only those rights specifically enumerated in the constitution are immune from government regulation or absolute prohibition. They argue that the constitution itself does not grant any right of privacy, nor the right to have an abortion, nor the right to have a blood transfusion or other organ transplant, nor the right to grow and use pot. Hence, government is permitted to enact and enforce laws that limit or abolish such rights. We can enjoy these rights unless and until government decides to curtail them.

It is strange to me that “conservatives” would embrace such a restricted view of our inalienable rights as a free people.

My father (not a noted legal scholar, just the village radical) believed that the American government is an experiment. The constitution is not an end in itself; rather, it is a means to an end. He would have snorted and chortled at the Scalia view of the constitution.

If you take the permissive view, implied by the ninth and tenth amendments, that there are many rights that the people have, rights too numerous to list in the constitution, then certainly one of these rights is simply the right to be left alone. One has the right to do whatever one pleases as long as there is no harm to someone else. One has the right to grow and smoke pot. One has a right to use cocaine and heroin, although one does not have a right to steal other’s money to buy the stuff. All women have the right to medically safe abortions. One has the right to blood transfusions, to organ transplants, and to therapeutic implants to improve sight and hearing. Government has no business interfering with these rights unless it can show that one is harming or endangering others by enjoying them. Government does not have the right to stop one from drinking an alcoholic beverage; it does have the right to stop one from operating a car or other machinery that can endanger others while one is under the influence of the alcohol. Government does not have the right to prevent one from committing suicide.

Many conservatives find this libertarian view of civil rights dangerous.

I welcome the receipt of supporting and opposing opinions.