JUSTICE ANTONIN SCALIA is probably the smartest man on the Supreme Court. That makes him a living example of how bad political and philosophical premises can put great talent in the service of an evil cause, namely, the destruction of individual liberty.
In November, while speaking at the University of Missouri, Scalia was asked what he thought about proposals to impose a national ID card on the American people. Scalia said he personally opposes the idea and would vote against it if it were put to a public referendum. But when a student asked whether a national ID would violate the Constitution’s Fourth Amendment, which protects individuals “in their persons, houses, papers, and effects against unreasonable searches and seizures,“ Scalia pointed out that the Amendment says nothing about an ID card. According to an Associated Press report, he said, “If you think it’s a bad idea to have an identity card, persuade your fellow citizens’ through the amendment process, rather than asking courts to make policy.“
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.
James Madison, the acknowledged father of the Constitution, said that the central government was delegated powers that are “few and defined.“ This is backed up by the Constitution itself. Article I, Sec. 8 contains a short list of powers given to the Congress. To reinforce this point, the Tenth Amendment (in the Bill of Rights), which was adopted at the urging of those who thought the Constitution would allow the government to grow too powerful, says, “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.“
The upshot is that the national government was not given a general grant of power to do whatever officeholders think is right. It was given specific powers and only those. Any others belong to the states or the people. Or to put it more bluntly, if a power is not explicitly listed in the Constitution, the national government can’t exercise it.
This is not only clear from the constitutional text, it is also the only scheme consistent with the idea of a constitutional republic. A constitution such as ours is needed only if the intent is to limit the powers of government on behalf of liberty. A “constitution“ that limits liberty on behalf of government power is a contradiction in terms.
Scalia’s philosophy almost makes me think we would have been better off without the Bill of Rights. How so?
Interpreting the Bill of Rights
The Bill of Rights has distracted us from essential questions about government power. When someone proposes that the federal government do something, the first question most constitutional scholars ask is whether that power would violate any provision of the Bill of Rights. Since the list of rights is brief, the debate centers on how strictly or loosely we should interpret the amendments. Two major points of view have emerged. One side urges a strict construction. The only rights people have are those expressly stated. Thus, this side argues, there is no right to privacy per se because the word “privacy“ does not appear in the Bill of Rights. This is Scalia’s side. He argues that if the words “national ID“ can’t be found in the Bill of Rights, then the government may impose one.
The other major side urges a looser interpretation. It looks for penumbras emanating from the amendments, to use the late Justice William O. Douglas’s famous term. Thus this side finds a general right to privacy emanating from several amendments, particularly the Fourth and Fifth. (This is not to say that this side is consistent. While it finds a fundamental right to privacy although the word does not appear, it does not find a fundamental right to property, despite the appearance of the word.)
It is worth noting that both sides strain to ignore the Ninth Amendment, which says that people have rights in addition to those enumerated in the Constitution. That amendment was adopted to satisfy those who warned that any necessarily finite list of rights is actually dangerous because it will be construed as exhaustive. The Ninth Amendment is virtually missing from constitutional jurisprudence. Robert Bork once called it the equivalent of an inkblot covering up the words: we don’t know what it says. Thus even with the Ninth Amendment, the Bill of Rights has been construed as exhaustive. (Some might argue that this is an intrinsic flaw in constitutionalism.)
At any rate, both sides look at the Bill of Rights in deciding whether the federal government may exercise a particular power. Virtually the only argument is over whether the power violates an amendment. The list of powers is a secondary consideration — if that. (I am oversimplifying somewhat. References are made to various provisions, such as the commerce and general-welfare clauses, to justify new powers.)
Enumerated powers and restrictions on rights
But that is not how the Constitution was supposed to work. Recall that the original document had no bill of rights. It was added later. During the debate over whether there should be a list of rights, Alexander Hamilton (admittedly no friend of liberty) pointed out that it was unnecessary. He asked: Why add a declaration of freedom of the press if the Constitution delegates to the government no power to regulate the press in the first place?
Hamilton’s question provides a key to using the Constitution. Had there been no Bill of Rights, any proposal for the exercise of federal power would have to be referred to the Constitution proper, specifically, Article I, Section 8. If the proposed power did not appear in that short list, the federal government would have to abstain from exercising it. Therefore, the Bill of Rights distracts us from this primary task, leading to a strict construction of our rights but a loose construction of the government’s powers.
I will not go so far as to argue that we’d have been better off without the Bill of Rights, for as Randy Barnett argues, the first ten amendments were intended also to limit the manner in which the government exercises the powers enumerated in Article I, Section 8. Nevertheless, the Bill of Rights has not been an unmixed blessing.
The Founding Fathers (some of them, at least) wanted to safeguard individual freedom. So they made the task of amending the Constitution — that is, of augmenting the power of government — difficult. But Scalia’s way of thinking, which first seized politicians and judges long ago, reverses the Founders’ basic intention. If government can do anything except that which is expressly prohibited by the Constitution, then the burden of amending the Constitution falls on those who favor preserving freedom instead of those who favor expanding power.
Scalia’s remark shows clearly how America’s political system has been turned against liberty. Instead of a few islands of power in a sea of liberty, to use Stephen Macedo’s metaphor, we have a few islands of liberty in a rising sea of power. It perfectly illustrates the thesis of a new book, Dependent on D.C., by Charlotte Twight of Boise State University (Palgrave/St. Martin’s Press). In this important book, Twight demonstrates how government leaders have changed the American system, first, to keep the people from knowing what the politicians are doing and then to make it costly for the people to object. She calls it “manipulating the political transactions costs.“ Twight demonstrates her thesis with several case studies, including the passage of Social Security and Medicare.
A key to her thesis is the constitutional inversion to which I have referred. By shifting the onus of amendment from those who want to intrude on our liberties to those who wish to maintain them, the growth of government is inevitable. Jefferson knew of what he spoke when he said, “The natural progress of things is for liberty to yield and government to gain ground.“
If we are to restore our liberties and get government under control again, it behooves all Americans to understand what Charlotte Twight has to say.