Saturday, March 14, 2009

What part of self-evident doesn't Scalia understand, aka We hold this important shit to be obvious, you Wackaloon

Mad good post over at PhysioProf on "Constitutional Originalism, Natural Law, and The Ninth Amendment." Now, J is not a fan of Natural Law when it is taken literally, as is believed by some libertarians -- that some rights somehow derive from the very status and being of human beings and the universe, such as right to property. I firmly believe rights are human-made and thus human-determined; that doesn't mean I believe they're arbitrary per se. There are rights that we have come to recognize as fundamental for dignified human life, and I do believe these are fundamental, based on the sort common-sense humanism of them (the right against arbitrary/unreasonable search and seizure, freedom of religion, freedom of press, the right to food security/food sovereignty, unreasonable restrictions of movement, etc. etc., such as one might see in our Bill of Rights, the Universal Declaration of Human Rights, and the 1966 International Covenant on Economic, Social, and Cultural Rights, still not ratified by the US Congress, btw).

Anyway. Read on, read PhysioProf -- I don't think he even swears in this one.

Conservative legal theorists spend a lot of time talking about how the text of the Constitution should be construed only as it was understood at the time of the Founding and Ratification. Building on this idea, they rail against “judicial activism” and the “creation of new rights” that are not “found in the text” of the Constitution. This provides a theoretical basis for conservative claims that there is no Constitutionally protected right to many things they despise: gay marriage, abortion, health care, housing, food, etc.

As I will describe below, this textual originalism is bad history and bad law. Furthermore, this theory only has any jurisprudential legs at all because of an unfortunate happenstance of 20th Century Supreme Court jurisprudence.