Utah Bar Journal

Mr. McKinney asserts that the Framers did not think there were any principles of law antecedent to the Constitution, that the rights it guarantees derive from "the will of the people." Actually, the Framers believed there were antecedent principles, fundamental rights that did not depend on the will of the people or the will of the king.

The premise that there are antecedent principles of law is why the Framers originally omitted any bill of rights from the text of the Constitution. The authors of "The Federalist Papers" defended the omission by arguing that the Constitution is a concession of powers by the people to the national government, and that any rights not expressly conceded are retained by them. Therefore, it is not necessary to expressly protect the retained rights by an express bill of rights. In fact, the Federalist's authors argued that an express bill of rights would be dangerous because it would imply that only the enumerated rights are protected. In short, they warned against the very position now advocated by the "Originalists."1

The premise that there are antecedent rights is also shown by the language of the Declaration of Independence. It uses the phrase "inalienable rights" for the antecedent rights. Inalienable rights do not depend on the will of the people or the will of the king. The Continental Congress was careful to avoid enumerating them. It wrote: "[Americans] are endowed by their Creator with certain Inalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness." "Life, Liberty and the Pursuit of Happiness" is pretty open-ended, but that was not open enough for the Continental Congress. It used the words "among these" to make it clear that even "Life, Liberty and the Pursuit of Happiness" do not enumerate all our inalienable rights.

When the first federal congress met in 1789, twelve and a half years after the Declaration of Independence, one of the first things it did was enact the Bill of Rights, the first ten amendments to the Constitution. The first Congress was careful to avoid any implication that the enumerated rights were all there are. The 9th Amendment expressly provides: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

The historical reality is that in the 9th Amendment the Framers expressly rejected the Originalist view that the Constitution enumerates all the rights of individuals as against the federal government. In reality, the "Originalist" view that there are no rights antecedent to the Constitution and the Bill of Rights originates with the Originalists, not with the Framers.

A conservative position is based on the historic reality that the Framers understood that the Constitution and the Bill of Rights is not an enumeration of all the rights individuals have with respect to the national government. There are "others retained by the people" that the Framers left to the courts to articulate. The Framers intended the courts to have the power that the Originalists deny - the power to find new rights. Why?

The Framers did not trust the national government. In the Constitution and the Bill of Rights, they balanced the power of the national government as against the rights of the states and individual Americans. The great innovation of the Constitution was the creation of dual citizenship for Americans. An American was to be both an American and, for example, a Virginian, owing allegiance to both sovereigns. This dual allegiance could only work if the national government remained within its proper sphere. If the Constitution prohibited the courts from finding new rights, there would be no protection against a future national government enacting laws that technically stayed within the letter of its enumerated powers but upset the balance the Framers had struck.

Although a conservative view is based on the historic reality that the Constitution reflects a set of principles and does not enumerate all the rights or individuals as against the federal government, it rejects judicial activism in the sense of finding new rights that upset the Constitutional balance. For example, from a conservative viewpoint Roe v. Wade2 was wrong. The decision struck down a state law regulating abortions on the basis of the 14th Amendment's due process clause. In effect the decision balances the right of the unborn child to life against the rights of the mother over her own person. From a conservative view, this balance is for each state to make, not for the national government. It was never the purpose of the post revolutionary war Framers of the Bill of Rights (or of the post civil war framers of the 14th Amendment) to shift authority over birth, marriage, the family, and the end of life to the federal judiciary through the due process clause.

From a conservative viewpoint, the flaw in Roe v. Wade is not that the new right is not expressed in the Constitution. Rather, the flaw is that the new right upsets the Constitutional balance. In effect, the federal judiciary enacted a law by judicial decision that the federal legislature could not enact by legislation. From a conservative viewpoint, only the preservation of the Constitutional balance justifies a court articulating a new Constitutional right. Or, perhaps it is not really a new right at all. It is a new protection for an old right.

The aftermath of Roe v. Wade shows the illegitimacy of the decision. The debate today is whether pro-life or pro-choice nominees should be appointed to the Supreme Court, as though they were candidates for political office. If the Supreme Court had upheld the right of the states to deal with the question of when life begins, the debate today would be in the state legislatures, i.e., political debates over a political question in a political forum conducted by politicians.

A conservative view is not necessarily pro-life or pro-choice. The conservative criticism of Roe v. Wade is not based on the premise that a foetus is (or is not) a living person. It is based on the premise that the Constitution is a balance of powers and rights that the courts should respect and preserve.

A second case that illustrates the difference between a conservative and the Originalist position is pending in the Supreme Court today in Gonzales v. Oregon.3 The issue is whether the federal executive can prevent Oregon doctors from prescribing drugs that are FDA approved for the treatment of pain for the purpose of helping patients commit suicide under Oregon's assisted suicide law. The basis of the federal executive's claim of authority is, of course, the Commerce Clause. From an Originalist viewpoint, the federal executive must prevail. There is no right enumerated in the Constitution to commit suicide or to prescribe drugs to commit suicide. But, from a conservative view, the Secretary is using the Commerce Clause to defeat the balance struck by the Framers that left matters of birth, marriage, family and ending of life to the states. What the federal government is doing in Gonzales v. Oregon is exactly what the Framers feared, exactly why they enacted the 9th Amendment. The Secretary is staying within the letter of the national government's enumerated powers but upsetting the Constitutional balance. From a conservative point of view, it would be proper judicial activism for the Supreme Court to hold for Oregon on the basis of an unenumerated right.

In any event, the challenge for the Originalists is to reconcile the words of the 9th Amendment that there are other rights "retained by the people" with their claim that the Framers "adopted certain language stating the form and limits of power of the new government, and enumerating certain rights of the people," to quote Mr. McKinney.

Perhaps it can be done. At the conclusion of the Gilbert and Sullivan operetta "Iolanthe," the female chorus, who are fairies, have fallen in love with the male chorus, who are wastrel lords who love the fairies and want to marry and reform. The impediment is the law that any fairy who marries a mortal must die. The Lord Chancellor asks for the text and says he will deal with it. "Every fairy shall die who doesn't marry a mortal." Final chorus. Curtain.

1. The Federalist, No. 84 (Hamilton).

2. 410 U.S. 113 (1973).

3. No. 04-823, opinion below 368 F.3d 1118 (9th Cir. 2004) sub nom. Oregon v. Ashcroft.