4/17/2010—According to news reports, Republican Senators repeatedly grilled UC Berkeley law professor Goodwin Liu for not following original intent in interpreting the Constitution. But, aside from the merits of that approach (and the hypocrisy of giving corporations constitutional rights while feigning devotion to original intent), all the talk about finding “new” rights demonstrated the legal positivism of the Senators. For a religious person, or even a secularist devoted to natural law, there are not “new” rights. There are rights. Those rights might be newly recognized, like the right of women to develop as individuals, but they are not new rights. Humans have simply denied existing rights in the past.
The framers of the Constitution remained the natural law thinkers they were when they earlier wrote of unalienable rights with which we are endowed by our Creator. That is why they later added the Ninth Amendment, which they thought would serve as a reminder that there are rights “other” than those enumerated in the text. They would not have understood referring to such rights as “new”.
Of course it is no surprise that the Republican Senators do not understand this. As a friend of mine has put it, we are all atheists now, even those of us who go to church, synagogue and mosque. We no longer really understand what a religious universe looks like. The supporters of Professor Liu are just as atheistic as are his opponents.
Nor is this primarily a matter of judicial activism. One might applaud a judge for identifying fundamental human rights and then insist that such right not be judicially enforceable. That seems to me to violate the simple textual meaning of the ninth amendment, however. If the enumerated rights are enforceable in the courts but other rights are not, then those other rights are being denied or disparaged, contrary to the command of the ninth amendment.