Feb 13, 2013

Posted in Uncategorized

Scalia: “Wearing whatever hat you want is part of the freedom of justice.”

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Justice Scalia told Nina Totenberg:

“Wearing whatever hat you want is part of the freedom of justice,” Scalia said, referring of course to his black inauguration cap. His hat was a replica of Lord Chancellor of England Thomas More’s hat worn in a portrait from 1527 and was a gift from the Thomas More Society. “I’m ashamed you didn’t recognize it,” Scalia told NPR’s Nina Totenberg, who was interviewing him for the Smithsonian Associates event.

Scalia also discussed another justice who liked to wear interesting hats — the late Chief Justice William Rehnquist. “I always thought he should have worn a chain,” Scalia remarked.

Update: My friend Madison Kitchens writes in to make a very important point about hats and freedom–a point that Justice Scalia, a frequent foe of the 9th Amendment, should appreciate the irony of.

As Randy Barnett wrote in a 1991 article in the Valparaiso Law Review, the very nature of the 9th Amendment is defined by the absurdity of having to state that a man should have a right to wear the hat of his choice.

This open-ended conception of rights is illustrated by a fascinating exchange that occurred during the debate in the House over the wording of what eventually became the First Amendment proposed by the House Select Committee.  At one juncture in the debate, Representative Theodore Sedgwick criticized the committee’s inclusion of the right of assembly on the grounds that ‘it is a self-evident, unalienable right which the people possess; it is certainly a thing that never would be called into question; it is derogatory to the dignity of the House to descend to such minutiae. . . .” 18 Representative Egbert Benson replied to Sedgwick that: “Me committee who framed this report proceeded on the principle that these. rights belonged to the people; they conceived them to be inherent; and all that they meant to provide against was their being infringed by the Government.” 19Sedgwick then responded that:

if the committee were governed by that general principle, they might have gone into a very lengthy
enumeration of rights; they might have declared that a man should have a right to wear his hat if he
pleased; that he might get up when he pleased, and go to bed when he thought proper …. 
20

Notice that Sedgwick was not denying that one had a right to wear one’s hat or go to bed when one pleased.  To the contrary, he equated these inherent rights with the right of assembly which he characterized as ‘self-evident’ and unalienable.” 21 Indeed, Representative John Page’s reply to Sedgwick made this explicit ‘[L]et me observe to him,” said Page:

that such rights have been opposed, and a man has been obliged to pull off his hat when he
appeared before the face of authority; people have also been prevented from assembling together
on their lawful occasions, therefore it is well to guard against such stretches of authority, by
inserting the privilege in the declaration of rights.
 22

Sedgwick’s point was that the Constitution should not be cluttered with a potentially endless list of trifling rights that “would never be called in[to] question” 23 and were not “intended to be infringed.” 24 Sedgwick’s argument implicitly that the ‘self-evident, unalienable,’ and inherent liberty rights retained by the people are unenumerable because the human imagination is limitless.  It includes the right to wear a hat, to get up when one pleases and go to bed when one pleases, to scratch one’s nose when it itches (and even when it doesn’t), and to take a sip of Diet Coke when one is thirsty.
So yes Justice Scalia. Wearing a hat of your choice is indeed part of the freedom of justice–but this is a right nowhere enumerated.
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