- Cafe Hayek - https://cafehayek.com -

Quotation of the Day…

Tweet [1]

… is from page 43 of Stephen Macedo’s 1986 monograph, The New Right V. the Constitution [2]; (by “New Right” Macedo means those many American conservatives – such as the late Robert Bork – who, being rightly appalled by the unprincipled activist jurisprudence of especially the Warren Court, overreacted by insisting that judges should read the U.S. Constitution narrowly as a document that gives legislative majorities enormous powers over a vast range of issues – powers the exercise of which ought only under the rarest of circumstances be disallowed by judges as violations of the Constitution; rights not explicitly mentioned in the Constitution are, according to these conservatives, unprotected by the Constitution; the Ninth and Tenth Amendments to the Constitution, along with its preamble, are, with unintended irony, implicitly treated by such conservatives as being unconstitutional):

[T]here is a need for a constitutional vision with a robust conception of judicially enforceable rights grounded in the text of the Constitution, in sound moral thinking, and in our political tradition.  A principled judicial activism would overcome the incoherence of the modern Court’s double standard [of treating some individual rights as “fundamental” while other individual rights are effectively written out of the Constitution as ‘mere’ economic rights].

A principled jurisprudence would draw upon all the sources available and relevant to the task of constitutional interpretation.  First and foremost among these sources are the text and structure of the Constitution and the nature of the institutions established by the document.  However, both the text, especially the preamble … and the Ninth Amendment, and our tradition direct us beyond the rights explicitly stated in the document, so it is not possible to dispense with an understanding of the morality of individual rights.

Comments