With an asperity born of exasperation, Justice Antonin Scalia once wrote, “If you want aspirations, you can read the Declaration of Independence,” but “there is no such philosophizing in our Constitution,” which is “a practical and pragmatic charter of government.” Scalia was wrong, and much depends on Neil Gorsuch not resembling Scalia in this regard. Gorsuch can endorse Scalia’s originalism, construing the Constitution’s text and structure as it was understood by its Framers and ratifiers, without embracing Scalia’s misunderstanding of this:
There is no philosophizing in the Constitution — until the Founders’ philosophy is infused into it by construing the document as a charter of government for a nation that is, in Lincoln’s formulation, dedicated to a proposition that Scalia implicitly disparaged as impractical and unpragmatic. The proposition is that all persons are created equal in their possession of natural rights, to “secure” which — the Declaration’s word — the government is instituted. In Lincoln’s formulation, the Constitution is the “frame of silver” for the “apple of gold” that is the Declaration. Silver is valuable and frames are important, but gold is more precious and frames derive their importance from what they frame.
The drama of American democracy derives from the tension between the natural rights of the individual and the constructed right of the community to make such laws as the majority desires. Natural rights are affirmed by the Declaration; majority rule, circumscribed and modulated, is constructed by the Constitution and a properly engaged judiciary is duty-bound to declare majority acts invalid when they abridge natural rights.
In Justice Elena Kagan’s confirmation hearing, she was asked if she believes there are natural rights that are not among the rights the Constitution enumerates. She replied: “I don’t have a view of what are natural rights, independent of the Constitution.” Using a foggy double negative, she added: “I’m not saying I do not believe that there are rights pre-existing the Constitution and the laws, but my job as a justice is to enforce the Constitution and the laws.” And: “I think that the question of what I believe as to what people’s rights are outside the Constitution and the laws — that you should not want me to act in any way on the basis of such a belief.”
Well. Natural rights, which are grounded in nature, are thus “independent of” the Constitution. They are not, however, “outside” of it because its paramount purpose is the protection of those rights.
The Ninth Amendment says: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” If you believe, as Robert Bork did, that this amendment is a meaningless “inkblot” you must believe that the Framers were slapdash draftsmen about this, and only this, provision. Scalia believed that “the whole theory of democracy . . . is that the majority rules. . . . You protect minorities only because the majority determines that there are certain minority positions that deserve protection. . . . The minority loses, except to the extent that the majority, in its document of government, has agreed to accord the minority rights.”
The Ninth Amendment says: ‘The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.’
If that is the “whole theory” of democracy, then democratic theory is uninteresting. What is interesting begins with the institutional and cultural measures necessary to increase the likelihood that majorities will be reasonable and respectful of the natural rights of those in the minority. It is the judiciary’s job to construe the “document of government” — the frame of silver — in the light cast by the apple of gold.
With the Declaration, Americans ceased claiming the rights of aggrieved Englishmen and began asserting rights that are universal because they are natural, meaning necessary for the flourishing of human nature. The Constitution is America’s fundamental law but not its first law. The Declaration appears on Page 1 of Volume 1 of the U.S. Statutes at Large and it is at the head of the United States Code under the caption “The Organic Laws of the United States.” Since the 1864 admission of Nevada to statehood, every state’s admission has been conditioned on adoption of a constitution consistent with the U.S. Constitution — and the Declaration.
The Constitutional Convention met in the room where the Declaration was debated and endorsed, and the Constitution implements what the Declaration initiated. Gorsuch will occupy much of the jurisprudential space Scalia so admirably did. But having earned a doctorate in philosophy and jurisprudence at Oxford studying under John Finnis, author of the book Natural Law and Natural Rights, perhaps Gorsuch will effect a philosophic correction.