Justice Scalia and his trusty sidekick, Justice Thomas, subscribe to their own special brand of judicial interpretation called originalism. This allows them to make judicial decisions based on their own personal biases then justify them using a complicated blend of textual analysis and original intent depending on what the Constitution says or doesnt say. Confused? Good... you cant argue with logic like that.
One of the tenets of originalism is that if a right isnt specifically written into the Constitution, it doesnt exist. This would come as quite a shock to the people who wrote the Constitution.
James Madison, also known as the Father of the Constitution, did not believe that any rights should be written into the Constitution. He was afraid that by listing some rights, some nitwit in the future might mistakenly believe that We the People only have the rights that were specifically listed. Obviously, Madison was right.
[To say] a bill of rights was not necessary... might do for the audience to which it was addressed... but it wasn't enough. Human rights may be well known to those writing the Constitution, they may all agree that governments may not infringe on human rights, but, nonetheless, we must not trust that simply inferring this truth is enough for future generations who have not so carefully read history or who may foolishly elect leaders inclined toward tyranny. -- Thomas Jefferson, in a letter to James Madison, December 1787.
To satisfy this concern, Madison later incorporated a Bill of Rights into our Constitution; but just in case someone in those future generations could be stupid enough to believe that this list included all our rights, he included the Ninth Amendment and Tenth Amendments.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.--Amendment IX
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. --Amendment X of the U.S. Constitution
In all our associations; in all our agreements let us never lose sight of this fundamental maxim that all power was originally lodged in, and consequently is derived from, the people. We should wear it as a breastplate, and buckle it on as our armour. --George Mason, Author of Bill of Rights
You cant get much clearer than that, but it is still not clear enough for Justices Thomas and Scalia. They are somehow able to ignore the Constitution, the Declaration of Independence, the Federalist Papers, and letters written by the Founding Fathers, and continue to insist that we only have the rights that are specifically written down in the Constitution.
This gives an indication of the wide gulf that separates the expansive rights expounded upon by the Founding Fathers and the strictly limited rights that the originalists are willing to grant us. Now President Bush is appointing two more Justices who, he hopes, will join with Scalia and Thomas to increase the power of the executive branch and decrease the rights of the people. This unholy alliance of judicial and executive branches has upset the checks and balances of government and has turned the judicial system into a bad joke.
The Bush administration no longer need worry about being held responsible for anything. Even if someone was convicted of something in a lower court, they could appeal the verdict to the Supreme Court, where the conviction would ultimately be overturned. New precedents can be established, and old ones overturned. They can make the law mean whatever they want.
Time will tell whether Bush will be able to successfully pervert the judicial system for decades to come with his appointments or not. John Paul Roberts has already been confirmed as the new Chief Justice of the United States, and now Bush is attempting to get his personal attorney, Harriet Miers, confirmed to fill the seat of the the retiring Justice Sandra Day OConnor. The Founding Fathers had something to say about this kind of appointment:
[The President] would be both ashamed and afraid to bring forward, for the most distinguished or lucrative stations, candidates who had no other merit than that of coming from the same State to which he particularly belonged, or of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure. --Alexander Hamilton, Federalist Paper Seventy-six