JUDGING by the performance of the Senate Judiciary Committee in the recent nomination of John Roberts to become Chief Justice, it appears that some U.S. senators haven't a clue about the proper role of the U.S. Supreme Court.
It is sure to be an issue again when President Bush's next nominee goes to Capitol Hill.
Such flash points as same-sex marriage, abortion, school prayer, end-of-life choices, and affirmative action are merely bubbles on the surface of a long-time, broiling constitutional issue, namely the interpretation and harmonization of the Ninth and Tenth Amendments to the Constitution.
That is a paramount duty of the Supreme Court, and it requires a bit of historical review.
Once the drafters of the Constitution had agreed on the framework and duties of a national government, they adopted 10 amendments to it. The first eight enumerated a number of specific rights, some of which are freedom of speech and the press, the right of an accused to have counsel and to confront witnesses, freedom from unreasonable searches and seizure, the right to keep and bear arms, and the right of peaceable assembly and to petition the government for redress of grievances.
These are individual rather than collective rights. Any citizen may exercise them.
Then followed the Ninth Amendment:
"The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."
Why did they adopt the Ninth Amendment? Well, they had to, in order to exempt the Constitution from the application of an ancient Anglo-Saxon legal rule about construing legal documents: "Expressio unius est exclusio alterius." Translated, that means that to mention a series of specific things - in this case "rights" - presumes that the preparer of the document intended to exclude all others of the same genre.
The Ninth Amendment created some reserved seats, so to speak, for unspecified rights which might be identified in the future. The question was, who had the power to identify those rights?
At first blush, one might say, "Why, Congress, of course! After all, Article I, Section 1 says that 'All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.' "
The operative words there are "herein granted." That means that if the Constitution doesn't grant a particular legislative power to Congress, then Congress can't manufacture it. But who can?
The Tenth Amendment does:
"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."
Believers in the Tenth Amendment deny that the federal government has a blank check to invent new "rights." Rather, they say, that is up to the state legislatures. This was the constitutional basis for John C. Calhoun's belief that state legislatures had the power to "nullify" acts of Congress. In retrospect, Calhoun's reading of the Tenth Amendment was probably a better solution to the constitutional problem than the one we pursued: the Civil War.
Beginning with Chief Justice John Marshall's assertion in Marbury vs. Madison, 5 U.S. 137 (1803) that the U.S. Supreme Court has the right to "interpret" acts of the legislature, the court has gradually taken advantage of the nebulous language of the Ninth Amendment to expand it at the expense of the Tenth.
Thus was the battle line drawn between proponents of the Ninth Amendment (judicial activism) and partisans of the Tenth Amendment (judicial restraint).
The challenge to the present Supreme Court is to find a way for the Ninth and Tenth Amendments to live side-by-side in harmony. It is not going to be easy. It has been made more complex by the fetish of "equality," which derives out of the language of the Fourteenth Amendment ("No State shall ... deny to any person within its jurisdiction the equal protection of the laws.")
But there is a big difference between "denying" a right and "conferring" one.
Suppose, for example, that in an effort to protect its citizens from the effects of second-hand tobacco smoke, the Illinois Legislature passed a law absolutely prohibiting people within its jurisdiction from smoking.
Suppose, moreover, that the Indiana Legislature refused to enact such a law. Are the nonsmokers of Indiana being denied equal protection of the laws? If so, their remedy is at the ballot box: to elect a new set of legislators who will vote to make Indiana smoke-free. That is called "democracy."
If, on the other hand, the Illinois anti-smoking statute granted an exemption to those citizens whose last names began with the letters A through D, then those whose last names began with E through Z are being denied equal protection of the state law which was supposed to protect them from second-hand tobacco smoke.
They, too, may at the next election set out to defeat the legislators who discriminated against them. That is also democracy.
But democracy moves slowly, and zealots don't like to wait. An "activist" Supreme Court would impose social conformity on either state under the pretext of "equal protection," rather than await the deliberations and debates that are supposed to characterize the democratic process; and that seems to me to show a profound contempt for democracy on the part of the justices.
Some U.S. senators seem to think that judges are on the bench solely as advocates for particular ideologies or special-interest groups, and that the process of confirmation by the U.S. Senate is simply an excuse to administer a saliva test for ideological loyalty, upon which the nominee's fitness to hold judicial office depends.
For a senator to ask in advance how any prospective Supreme Court justice might vote in specific cases involving abortion, same-sex marriage, affirmative action, assisted suicide, or other hot-button topics demeans that individual's impartiality.
It suggests that some senators either don't understand or don't care that each Article of the Bill of Rights must be treated as a co-participant in the federal system of government.
The central issue facing the Supreme Court today is to strike a thoughtful balance between the delegation of specific rights to the federal government, and the reservation of other rights to the states. Resolving of the "hot button" issues will then rest where it belongs: in elected legislative bodies, and not in the hands of five or so appointed Supreme Court justices.
Robert G. Morris is a retired attorney. He lives in Toledo.