Dispatches from the Creation Wars

Robert Bork and the 9th Amendment

Another book I’ve just finished rereading is People Rising: The Campaign Against the Bork Nomination, by Michael Pertshuk and Wendy Schaetzel. I was in college when Bork was nominated for the US Supreme Court in 1987, and at the time I was taking a course in judicial history. We ended up using the Bork nomination as a pretext for studying the issue for most of the course, so I did a great deal of research on Bork’s judicial philosophy, his law review articles, speeches and decisions as an appeals court judge. The primary thing that sticks out in my memory about the entire affair was how surprised I was that Bork was continually referred to as a pre-eminent legal scholar even by his political opponents like Lawrence Tribe and the Democrats on the Senate Judiciary Committee. After reading literally a few thousand pages of his writings, Bork struck me as anything but a sophisticated legal theorist. The contradictions and shortcomings in his thinking were so obvious to me, even as an amateur, that I was astonished to hear him praised so effusively by those who surely agreed that Bork’s judicial philosophy was shallow at best and downright dangerous at worst. Purely on the basis of his resume, he was certainly more qualified than almost anyone else who had ever been nominated for the Court – Yale law professor, Solicitor General of the United States under Nixon, Appeals Court judge. His resume and credentials were impeccable. Still, I think the nation dodged a metaphorical bullet when his nomination was voted down by the Senate. Let me explain at least part of the reason why….

One of the most important judicial decisions in history was Griswold v Connecticut. The case involved a state law which forbid the purchase, possession or use of contraception even by married couples in the state of Connecticut. In 1965, that law was challenged and the Supreme Court agreed with them and struck it down as a violation of the basic right to privacy guaranteed by so many provisions of the Bill of Rights. Bork was one who railed against that decision, as he railed against virtually all of the Supreme Court decisions of the last half century that expanded the sphere of various protections either specifically stated or implied by the Bill of Rights. His argument was fairly straightforward – nowhere in the bill of rights does it specify any “right to use contraception”, and therefore the government has the authority to prohibit it. The crux of the argument is that anything not specifically stated the bill of rights is not to be considered protected from government coercion. But is this true in our constitutional system? Certainly not in the system that the founders intended.

One of the great arguments that took place among the founders was over the need for a Bill of Rights. Some argued that it was not enough merely to limit government through such provisions as the checks and balances and separation of powers inherent in the governmental structure that the constitution provided. It should be set out in no uncertain terms, they said, not just what the government may do – the authority granted to the government – but also what the government may not do. Others countered that by specifying only certain rights, it would leave the impression that anything not specified would be fair game for the government to regulate or prohibit. James Madison, during the deliberations on the framing of the Bill of Rights, proposed the 9th amendment specifically to allay such fears. He introduced the proposed 9th amendment by saying:

“It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution [the Ninth Amendment].

This amendment passed both the House and the Senate with virtually no opposition, and little change in wording, and the final version of the 9th amendment reads, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Bork renders this amendment, with such clear intent behind it, completely meaningless in his judicial philosophy. How does he do so? By setting up an almost surreal dichotomy between the desire of an individual to be free and the desire of another individual or group of individuals to deny them freedom. He sets this out in an Indiana Law Journal article in 1971, stating:

“Every clash between a minority claiming freedom and a majority claiming power to regulate involves a choice between the gratification of the two groups…why is sexual gratification more worthy than moral gratification?

Well Mr. Bork, there is a very obvious reason why the first “gratification” is more worthy than the second – because the first “gratification” involves only control of one’s own choices and actions, while the second involves the control of someone else’s choices and actions. But Bork sets up a bizarre and tortured equivalence between the two desires, arguing that “No activity that society thinks immoral is victimless. Knowledge that an activity is taking place is a harm to those who find it profoundly immoral.” This is truly an irrational statement, but no more irrational than many others made by Bork in that same article. For example, his views on freedom of speech would dramatically scale back the protections afforded by the first amendment. He writes:

“Constitutional protection should be accorded only to speech that is explicitly political. There is no basis for judicial intervention to protect any other form of expression, be it scientific, literary, or that variety of expression we call obscene or pornographic. Moreover, within that category of speech we ordinarily call political, there should be no constitutional obstruction to laws making criminal any speech that advocates forcible overthrow of the government or the violation of any law.”

Imagine a country governed under Bork’s judicial philosophy. Calls for civil disobedience, the basis of the entire civil rights movement in the United States, could be punished. Publishing scientific theories or papers that the government objects to would have no constitutional protection whatsoever and the scientist could be imprisoned for offering an explanation that the government finds objectionable (Galileo, anyone?). There would be no right to publish any book or magazine, or give any speech that was not explicitly political. And this from the mind of a man that was allegedly an eminent legal scholar? I beg to differ. Bork’s legal philosophy amounted to little more than a continual apology for authoritarian government and a dramatic limitation on the rights of conscience considered sacrosanct by Jefferson and Madison. Had Bork been confirmed to the Supreme Court, there would have been much spinning in the graves near Monticello.