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July 13, 2005

It's a blueprint; not a stone monument

President Bush and his supporters have been pounding home the main qualification they want in a Supreme Court nominee. As Bush noted today, the nominee must be "someone who will sit on that bench and interpret the Constitution and not use the bench from which to legislate."

Wednesday, Kathryn Jean Lopez, editor of National Review Online, argued in a Star Opinion page essay that following the Constitution "means no writing in nonexistent constitutional rights from the bench — like that of privacy."

Perhaps these denizens of the right should reread the Constitution.

Even a cursory glance at the Constitution shows it is about the structure of the federal government — what it is allowed to do, what its three branches are allowed to do, how lawmakers are to be elected, in short, a blueprint for government, not an enumeration of rights.

The only specific mention of rights comes in the amendments to the Constitution, the first 10, the Bill of Rights, which were not ratified until four years after the Constitution was written and two years after it was ratified. And the Bill of Rights does not grant rights; it specifically tells government what it may not do in relation to rights the Founding Fathers believed were inalienable to all people.

Consider the phrasing of the amendments: "Congress shall make no law," "shall not be infringed," "shall not be violated." These are phrases that restrict what the government can do.

The beauty of the Constitution is its elasticity. With that, it would have been outmoded almost as soon as it was ratified. As we progress, as new forms of communication became available, as technology reached far beyond the horse and buggy, as we become more enlightened as a society and as a free people, new interpretations of how

People on the right, like Lopez, who believe that justices in the Supreme Court legislate from the bench and write in "nonexistent constitutional rights" are those who would restrict rights. No right to privacy? How dare anyone suggest that nonsense. The Fourth Amendment reads: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." That seems a pretty strong statement that the right to be left alone was one of those inalienable rights the Founding Fathers believed existed.

And if that isn't enough, consider the Ninth Amendment: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

That surely would incorporate a right to privacy and all other rights the people retain.

Those who argue a justice of the Supreme Court should be a strict constructionist too often want to see rights restricted.

If Bush and his supporters want an honest justice on the Supreme Court, then they should push one who understands the elasticity of the Constitution and one who believes that upholding the rights of individuals is much more important than conforming to the narrow politics of the few.