I’ve been watching the Alito confirmation hearings on C-SPAN as best I can. Similar to my inability to sit though a Sunday morning talk show without squirming in abject agony, I find myself having a tough time sitting though this one too. I can yell at the TV all day, but they never seem to hear me . . .
My issue is with the caliber and content of the questions being asked of Alito by the senators. None of the senators seem to grasp the nature of individual rights; they neither understand the rational basis for rights, nor the courts’ role in identifying or protecting rights from government encroachment under the federal constitution.
If I were a senator, I would need to ask only one question in order to form my opinion of a nominee's intellectual qualifications for office. That question would be:
1.) The Ninth Amendment states that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Does this mean that the Ninth Amendment is the “necessary and proper” clause for the protection of unenumerated rights, and that the courts have the responsibility to protect the people when the government violates these rights? If so, by what process do the people properly establish an unenumerated right before the courts? If not, what purpose does the Ninth Amendment serve in the constitution?