From George Will at National Review, Where Justice Scalia Went Wrong:
There is no philosophizing in the Constitution — until the Founders’ philosophy is infused into it by construing the document as a charter of government for a nation that is, in Lincoln’s formulation, dedicated to a proposition that Scalia implicitly disparaged as impractical and unpragmatic. The proposition is that all persons are created equal in their possession of natural rights, to “secure” which — the Declaration’s word — the government is instituted. In Lincoln’s formulation, the Constitution is the “frame of silver” for the “apple of gold” that is the Declaration. Silver is valuable and frames are important, but gold is more precious and frames derive their importance from what they frame.
The drama of American democracy derives from the tension between the natural rights of the individual and the constructed right of the community to make such laws as the majority desires. Natural rights are affirmed by the Declaration; majority rule, circumscribed and modulated, is constructed by the Constitution and a properly engaged judiciary is duty-bound to declare majority acts invalid when they abridge natural rights.
Natural rights, which are grounded in nature, are thus “independent of” the Constitution. They are not, however, “outside” of it because its paramount purpose is the protection of those rights.
The Ninth Amendment says: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” If you believe, as Robert Bork did, that this amendment is a meaningless “inkblot” you must believe that the Framers were slapdash draftsmen about this, and only this, provision. Scalia believed that “the whole theory of democracy . . . is that the majority rules. . . . You protect minorities only because the majority determines that there are certain minority positions that deserve protection. . . . The minority loses, except to the extent that the majority, in its document of government, has agreed to accord the minority rights.”
For Will the Declaration is part of the Constitution. Our tension is between liberty and democracy.