No matter who wins the presidency—and with it, the power
to appoint Supreme Court justices—America’s judiciary
will remain locked into a crucial error that corrupts their
interpretation of America’s bedrock constitutional principle:
individual rights. That error consists in regarding rights
as gifts from society, with judges as diviners of the so-called
The most fundamental question a Supreme Court justice must
answer is what in fact do the individual’s rights to
life, liberty, property, and happiness include? Only then can
a justice determine if a certain law or government action is
securing or violating those rights. But no justice asks this
question anymore because none believes it objectively answerable.
Instead, and broadly speaking, judicial conservatives ask what
privileges did American society at the time of ratification
grant the individual. So when modern legislators make criminal
offenses out of abortion, contraception, homosexuality, and
other acts said to be frowned upon centuries ago, conservative
judges feel duty-bound to stand aside and do nothing. To conservatives,
it’s meaningless to ask whether the right to liberty
in fact includes the right to use contraception (a question
that may not have even occurred to 18th-century Americans).
The only question is whether society at that time meant to
permit this action.
Judicial liberals reject this worship of bygone days. Instead,
liberals see constitutional values evolving like a motion picture,
constantly updating to reflect current social mores. So when
Congress declares federal dominion over every nut, bolt, and
button of American industry, liberal judges feel duty-bound
to stand aside and do nothing, not because earlier Americans
intended to allow such controls, but because modern Americans
want them. To liberals, it’s meaningless to ask whether
the right to liberty in fact includes freedom of trade and
contract (another question that might not have occurred to
18th century Americans). The only question is whether the “will” of
today’s society favors permitting such actions.
Barack Obama has pledged to appoint judges in this liberal
But conservatives and liberals are both wrong about rights.
It cannot be true that rights come from society. The very concept
of a right identifies the actions you can take without anyone’s
permission. Rights are not social privileges but objective
facts, identifying the freedoms we need to live our lives—whether
a majority in society agree or not. This is why the Founding
Fathers dedicated their new government to the protection of
each individual’s already-existing rights to life, liberty,
and the pursuit of happiness.
Thus, the Fifth and Fourteenth amendments forbid the government
to deprive us of “life, liberty, or property” (except
when we have violated someone else’s rights, and even
here the government must follow due process, such as holding
a trial). The Ninth Amendment safeguards all “rights” not
listed elsewhere. These principles encompass all the innumerable
actions required for your survival and happiness over a lifetime—the
right to make a contract, earn a profit, build a house, make
a friend, speak your mind, and so on.
Because the Constitution is the “supreme Law of the Land,” judges
are duty-bound to strike down statutes that violate rights.
This is not improper “judicial activism” but the
robust, constitutional power of judicial review.
Judges must never bow to social opinion, historical or current,
when exercising judicial review. For example, laws that institutionalized
government discrimination against blacks in military service
and voting deserved to be struck down, even if political majorities
in both the Founders’ generation and modern times favored
such rights violations.
To their discredit, today’s judges—conservatives
and liberals alike—have all but abandoned this essential
safeguard of our liberties.
The arch-conservative Robert Bork once declared that Ninth
Amendment “rights” carry no more meaning than an
accidental inkblot on the constitutional parchment. And according
to Justice Antonin Scalia, there’s nothing in the Constitution “authorizing
judges to identify what [those rights] might be, and to enforce
the judges’ list against laws duly enacted by the people.” As
for life, liberty, and property, government can smash them
at will, if society so wishes. “Does [the Constitution]
guarantee life, liberty, or property?” asks Justice Scalia
rhetorically. “No, indeed! All three can be taken away.
. . It’s a procedural guarantee.”
Judicial liberals don’t dispute that a judge must bow
to the “social will”—they simply divine it
differently. As one liberal Justice declared, the Constitution “must
draw its meaning from the evolving standards of decency that
mark the progress of a maturing society.”
While conservatives and liberals squabble about whether society
permits this action or that, they are defaulting on their sacred
constitutional duty of judicial review. America desperately
needs a new generation of judges who understand that their
function is not to uphold social opinions but to protect our
Thomas A. Bowden is a former lawyer and law school instructor
from Baltimore, Md., and an analyst at the Ayn Rand Center
for Individual Rights, which promotes the philosophy of Ayn
Rand, author of Atlas Shrugged and The Fountainhead.