Judge Sonia Sotomayor has apparently never been exposed to the factual (vs. case law) history of the Constitution. In response to a question July 15 on judicial philosophy from Sen. Hatch, she said with no hesitation: "The Constitution creates the rights. It's immutable. The right [sic] that the Constitutions [sic] have created can't be added onto -- neither by congress or -- except by amendment -- or by a court." She went on to explain that, if a specific case arose, the liberty clause of the 14th Amendment could be used to affirm the right at issue, and only that right.
Not only is this factually wrong, but it is the explicit opposite of the intent of virtually all those who wrote the Constitution. In law school (I attended Georgetown), they do not require students to read such legal diversions as the actual journal of the Constitutional Convention, done by James Madison and known as "Madison's Notes." This tome -- nearly 700 pages (Microsoft Word) of the proceedings, day-by-day -- records in detail how the complete Constitution as we now have it was developed.
The Constitution, then and now, contains only two references to rights of any kind (being the right of authors and inventors to their writings and discoveries, and prohibition against suspension of habeas corpus). On September 12, 1787, the completed Constitution was presented to the Convention for formal adoption.
On that day, Col. Mason, a fellow Madison delegate from Virginia, suggested that the Constitution be prefaced with a Bill of Rights. There was brief discussion, followed by a motion to form a committee to draft a Bill of Rights. That motion was unanimously defeated. As presented to the First Congress, then, the Constitution contained no Bill of Rights ... no rights whatsoever beyond copyright/patent rights and habeas corpus.
Judge Sotomayor would hold that therefore, had the Constitution been adopted that day, we would have no rights beyond these. (I would remind the Judge that 14th Amendment was not adopted until 80 years and a Civil War after the Constitutional Convention.)
Indeed, the framers held that the very idea of expressing rights in our Constitution would transform it from a constitution to a decree from a sovereign. In the view of the founders, the people are "endowed by their creator" with rights -- never are we granted rights from a government. The practice of granting rights from the sovereign is precisely why we fought the Revolution.
From the entirety of her testimony, Judge Sotomayor clearly has great respect for impartial jurisprudence and has reliably demonstrated such respect in her nearly two decades on the bench. Nevertheless, her answer above raises fundamental issues. For example, nowhere in the Constitution or original Bill of Rights does the word "marry" appear. According to Judge Sotomayor, therefore, no such inherent right existed prior to the Civil War and the reconstruction Amendments passed later. Ditto the word "work." Ditto a long list of other rights.
In addition to the Convention unanimously rejecting a motion to include a Bill of Rights in the Constitution, when the issue did arise in the First Congress, the eventual inclusion of what we now know as the Bill of Rights was a political, not philosophic decision. Several states in Congress indicated that their legislatures would reject the Constitution unless additional restrictions were placed on the federal government. Many proposals were made and finally the substance of the Bill of Rights -- the first eight (not ten) Amendments -- was agreed to.
Then, out of abundant concern that far into the future some legislator or judge might erroneously interpret the Bill of Rights as granting rights, as opposed to the actual universal wording of imposing restrictions on the government ("Congress shall make no laws ...."), the 9th and 10th Amendments were added:
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
"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."
Other rights and powers? What other rights and powers?
Unmistakably, in both the Constitutional Convention and in the First Congress, the framers repeatedly wanted their peers and their posterity to know that the inherent, creator-given rights of the people were not expressed in the Constitution. The Constitution, they felt passionately, was never to be interpreted as a grant of rights.
The avant-garde view of Constitutional jurisprudence, espoused by the far right, is that when matters not expressed in or reasonably derived from the words of the Constitution are at issue, Congress, not the courts, should resolve the issue. For instance, if you want the right to tie your shoes, the right to gay marriage, or anything in between, Congress and 38 state legislatures must pass a Constitutional Amendment. Congress is weak and corrupt, so the legal theory goes, and the Supreme Court can help strengthen it by refusing to incorporate any additional, unenumerated rights into the Constitution.
By this theory, Plessy v. Ferguson (separate but equal) would still stand, and there would be no Roe v. Wade. By her own words, this is what we will have with Justice Sotomayor. By her nomination, this is what we have unintentionally obtained with President Obama.