September 26, 2003


The Nominations of Robert Bork and David Souter (GRISWOLD & ROE - CASES THAT SHAPED THE SUPREME COURT, Constitutional Law II, Loyola Law School, Fall 1997, Professor Karl Manheim)

Bork Attacks Griswold

Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 Ind. L.J. 1, 2-3, 6-7, 9 (1971)

The requirement that the Court be principled arises from the resolution of the seeming anomaly of judicial supremacy in a democratic society. If the judiciary really is supreme, able to rule when and as it sees fit, the society is not democratic. The anomaly is dissipated, however, by the model of government embodied in the structure of the Constitution, a model upon which popular consent to limited government by the Supreme Court also rests. This model we may for convenience, though perhaps not with total accuracy, call "Madisonian."

A Madisonian system is not completely democratic, if by "democratic" we mean completely majoritarian. It assumes that in wide areas of life majorities are entitled to rule for no better reason that they are majorities... The model has also a counter-majoritarian premise, however, for it assumes there are some areas of life a majority should not control. There are some things a majority should not do to us no matter how democratically it decides to do them. These are areas properly left to individual freedom, and coercion by the majority in these aspects of life is tyranny.

Some see the model as containing an inherent, perhaps an insoluble, dilemma. Majority tyranny occurs if legislation invades the areas properly left to individual freedom. Minority tyranny occurs if the majority is prevented from ruling where its power is legitimate. Yet, quite obviously, neither the majority nor the minority can be trusted to define the freedom of the other. This dilemma is resolved in constitutional theory, and in popular understanding, by the Supreme Court's power to define both majority and minority freedom through the interpretation of the Constitution. Society consents to be ruled undemocratically within defined areas by certain enduring principles believed to be stated in, and placed beyond the reach of majorities by, the Constitution.

If I am correct so far, no argument that is both coherent and respectable can be made supporting a Supreme Court that "chooses fundamental values" because a Court that makes rather than implements value choices cannot be squared with the presuppositions of a democratic society. The man who understands the issues and nevertheless insists upon the rightness of the Warren Court's performance ought also, if he is candid, to admit that he is prepared to sacrifice democratic process to his own moral views. He claims for the Supreme Court an institutionalized role as perpetrator of limited coups d'etat.

. . . The problem may be illustrated by Griswold v. Connecticut, in many ways a typical decision of the Warren Court . . . .

The Griswold opinion fails every test of neutrality. The derivation of the principle was utterly specious, and so was its definition. In fact, we are left with no idea of what the principle really forbids . . . .

Griswold, then, is an unprincipled decision, both in the way in which it derives a new constitutional right and in the way it defined that right, or rather fails to define it. We are left with no idea of the sweep of the right of privacy and hence no notion of the cases to which it may or may not be applied in the future. The truth is that the Court could not reach its result in Griswold through principle. The reason is obvious. Every clash between a minority claiming freedom and a majority claiming power to regulate involves a choice between the gratifications of the two groups. When the Constitution has not spoken, the Court will be able to find no scale, other than its own value preferences, upon which to weigh the respective claims to pleasure . . . .

Senators Questions Bork About Privacy

Hearings Before the Senate Comm. on the Judiciary, 100th Cong., 1st Sess. (Part I) 114-17, 182-83 (1987)

CHAIRMAN [Sen. Joseph Biden (D-Del.)]: In your 1971 article, "Neutral Principles and Some First Amendment Problems," you said that the right of married couples to have sexual relations without fear of unwanted children is no more worthy of constitutional protection by the courts than the right of public utilities to be free of pollution control laws.

You argued that the utility company's right or gratification, I think you referred to it, to make money and the married couple's right or gratification to have sexual relations without fear of unwanted children is no more worthy of constitutional protection by the courts than the right of public utilities to be free of pollution control laws.

It appears to me that you are saying that the government has as much right to control a married couple's decision about choosing to have a child or not, as that government has a right to control the public utility's right to pollute the air. Am I misstating your rationale here?

Judge [Robert] BORK. With due respect, Mr. Chairman, I think you are. I was making the point that where the Constitution does not speak-there is no provision in the Constitution that applies to the case-then a judge may not say, I place a higher value upon a marital relationship than I do upon an economic freedom. Only if the Constitution gives him some reasoning. Once the judge begins to say economic rights are more important than marital rights or vice versa, and if there is nothing in the Constitution, the judge is enforcing his own moral values, which I have object to. Now, on the Griswold case itself-

CHAIRMAN. So that you suggest that unless the Constitution, I believe in the past you used the phrase, textually identifies, a value that is worthy of being protected, then competing values in society, the competing value of a public utility, in the example you used, to go out and making money-that economic right has no more or less constitutional protection than the right of a married couple to use or not use birth control in their bedroom. Is that what you are saying?

Judge BORK. . . .[A]ll I am saying is that the judge has no way to prefer one to the other and the matter should be left to the legislatures who will then decide which competing gratification, or freedom, should be placed higher.

CHAIRMAN. Then I think I do understand it, that is, that the economic gratification of a utility company is as worthy of as much protection as the sexual gratification of a married couple, because neither is mentioned in the Constitution.

Judge BORK. All that means is that the judge may not choose.

CHAIRMAN. Who does?

Judge BORK. The legislature.

Senator [Orrin] HATCH [R-Utah]. I can certainly understand that there is a privacy protection in the Constitution, in the sense of guarantees against unreasonable searches of one's home, and the prohibition of laws that abridge free speech and the free exercise of religion. Those are areas where there is no question about the right of privacy, is there?

Judge BORK. None whatsoever.

Senator HATCH. What did Justice Black say about the scope of the so-called privacy right that is no where found in the Constitution?

Judge BORK. I think he said it was utterly unpredictable. I don't recall his exact words, but nobody knows what the scope is.

Senator HATCH. And that's what you were concerned about?

Judge BORK. That's what I meant when I said that, you know, privacy to do what? We don't know. Privacy to take cocaine in private; privacy to fix prices in private; privacy to engage in incest in private?

The elitist anti-democratic tendencies of the Democrats and the improbable populism of conservatives was never more clearly, and painfully, displayed.

Posted by Orrin Judd at September 26, 2003 10:15 AM

I have heard all the arguments, and while I emotionally disagree with them, I have to admit that constitutionally speaking, they are correct.

So, the question is: Why not a constitutional amendmennt codifying the right to privacy?

Posted by: Jeff Guinn at September 26, 2003 8:01 PM

Because privacy, as used in these cases, is generally just a cover for things we're ashamed of.

Posted by: oj at September 26, 2003 8:05 PM