[EL] Justice Scalia, originalism, and the 9th amendment

[Richard Winger]

There are many ways to rebut Justice Scalia's theory of how to interpret the U.S. Constitution.  One of them, in my opinion, is the very existence of the 9th amendment, which says, "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."  The existence of the 9th amendment seems to say that the founders expected the Constitution to protect individual liberty against future dangers to liberty that had not been imagined in 1791.

I believe that the Ninth Amendment ought to protect the right of voters to vote for anyone they wish.  Before government-printed ballots came into existence in the U.S. in 1888, it was impossible to restrict any voter from voting for anyone he wished.  That is the sort of right that existed at the time of the founding of the nation, and which seems essential, and which no longer exists, given Burdick v Takushi.  As a result, we are now at a point in constitutional law in which it is constitutional to require the voters of California's 31st U.S. House district, a majority Democratic district, to be limited to a choice of only two Republicans (as happened in November 2012).  Under federal law, the November election is the congressional election itself; it is not a run-off.

 
Richard Winger
415-922-9779
PO Box 470296, San Francisco Ca 94147
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