Thomas, Scalia and Alito Push Conservative Agenda

Kyle Hatt’s claims that in the textualist approach to constitutional interpretation, it is “the words of the Constitution itself which are the most important.” If this is the case, I’d call Alito, Thomas and Scalia selective textualists.Because the constitution does not specifically enumerate many rights, so the argument goes, they do have not constitutional protection. However, even the most myopic textualist is capable of reading the Ninth Amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”Since the unambiguous language and history of the Ninth Amendment was integral to the Griswold case that Hatt bemoans, it is worth noting Justice Goldberg’s concurring opinion: “The language and history of the Ninth Amendment reveal that the Framers of the Constitution believed that there are additional fundamental rights, protected from governmental infringement, which exist alongside those fundamental rights specifically mentioned in the first eight constitutional Amendments… To hold that a right so basic and fundamental and so deep-rooted in our society as the right of privacy in marriage may be infringed because that right is not guaranteed in so many words by the first eight amendments to the Constitution is to ignore the Ninth Amendment and to give it no effect whatsoever.” It appears that the Alito-Thomas-Scalia crowd is not only intent on overturning Row, but Griswold as well. However, doing so requires using a type of spin what would make even the most seasoned political operative blush. While claiming to be textualists, they feel they can ignore language that is the constitution so they can focus on what is not. Of course, selective textualist is just an oxymoron. Alito is just what the right wants: a conservative activist justice on the Supreme Court.