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Meet the new Bork, same as the old Bork - Elf M. Sternberg
Meet the new Bork, same as the old Bork
Anotonin Scalia has become Robert Bork.

Robert Bork once said that Griswold v. Connecticut, the ruling that allowed women to discuss birth control with their physicians without the intereference of the government, and which ensured that such a conversation was private, was wrongly ruled: as he famously put it, "The sexual gratification of one group is being elevated the the anguish of another group's moral gratifications. Nowhere in the Constutition do we find the imposition of a heirarchy of gratifications."

Scalia has now embraced this argument fully. There is no right to privacy to be found in the Constution.

Many constitutional scholars feel otherwise. Primarily, they argue that the Sixth Amendment, the one about being required to board soldiers in one's homes, is a specific example of a generalized case: the government may not put monitors into your home without a warrant for a specified reason.

Current Mood: annoyed annoyed
Current Music: Yuki Kajiura, Le Portrait de Petit Cossette

11 comments or Leave a comment
blaisepascal From: blaisepascal Date: August 2nd, 2012 04:18 pm (UTC) (Link)
I think you mean the 3rd Amendment, prohibiting the compulsory quartering of soldiers, not the 6th.
shunra From: shunra Date: August 2nd, 2012 06:38 pm (UTC) (Link)

What's "moral gratification"?

Does that not just mean "you only get to do what I feel is ok, and your opinions don't matter"?

elfs From: elfs Date: August 2nd, 2012 07:01 pm (UTC) (Link)

Re: What's "moral gratification"?

Yes. To which Bork might add, "And that is right and appropriate." It's a strain of American moralizing that goes back to well before the Revolution.

Edited at 2012-08-02 07:02 pm (UTC)
wendor From: wendor Date: August 2nd, 2012 08:46 pm (UTC) (Link)
First of all I have to agree with the first comment, you must mean the 3rd Amendment, not the 6th.

Second, the whole problem here, as pointed out by Scalia, is that you can not take a specific case in the text and make a generalized case out of it.

I would even suspect that you would agree that it isn't legal or appropriate to interpret those generalized cases out of specific examples. What if you were arrested for not wearing your safety goggles while dismantling your shed in your backyard, and the prosecutor's explanation was "Well, there isn't a law against that but there are other specific laws against dangerous behavior that could lead to personal injury, so we interpreted a general case of prohibition of dangerous acts". I'll bet in that case you'd scream bloody murder and insist that it's inappropriate and illegal to take a specifically enumerated prohibition and generalize it into a larger broader prohibition by interpretation rather than specific amendment.
omahas From: omahas Date: August 4th, 2012 03:48 pm (UTC) (Link)
Second, the whole problem here, as pointed out by Scalia, is that you can not take a specific case in the text and make a generalized case out of it.

Actually you can, it has been done (see California) and I believe that is why Scalia is whining.

However, one cannot go to any extreme on either side without abandoning one's COMMON SENSE.

And there is a big difference between using the 3rd amendment's clause regarding quartering soldiers (which was used, among other things, to keep tabs on folks that didn't behave) to interpret a basic right of privacy within the household and taking non-Constitutional-based laws of safety to reinterpret across a broader spectrum...rather than just passing another law for the specific case (which is what you are talking about)
ideaphile From: ideaphile Date: August 3rd, 2012 02:03 am (UTC) (Link)

"Rights" vs. "Constitutional rights"

Don't you understand that a comment about what rights are guaranteed by the US Constitution doesn't necessarily express an opinion about what rights OUGHT to be guaranteed by the Constitution?

I fully expect a Supreme Court judge to confine his or her thinking to what the Constitution actually says, based on the actual wording and the best historical evidence of what the words mean. He or she should internalize this restriction to the point that he or she uses the generic term "rights" to mean "Constitutional rights."

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omahas From: omahas Date: August 4th, 2012 03:38 pm (UTC) (Link)

Re: "Rights" vs. "Constitutional rights"

And what a pity that would be! To require the very idea that the Constitution can only say what it meant when it was written over 200 years ago to the people who focused on what was important to them then and can never be interpreted for a modern age would mean that it is time to scrap the document and start over again. Very little of what the Constitution says from THAT perspective has any meaning or impact on me today.

Fortunately, not only am I not the only one to disagree with you, but quite a few Founders do as well.

Thomas Jefferson: "I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors."

--Letter to Samuel Kercheval, July 12, 1816 (http://retirementseries.dataformat.com/Document.aspx?doc=150954811)
ideaphile From: ideaphile Date: August 4th, 2012 04:04 pm (UTC) (Link)

Re: "Rights" vs. "Constitutional rights"

I certainly agree the Constitution ought to change over time.

But I believe as Jefferson did, that it should change according to the expressed will of the people-- not according to the momentary whims of individual judges.

Do you disagree?

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Edited at 2012-08-05 02:58 am (UTC)
omahas From: omahas Date: August 5th, 2012 03:55 pm (UTC) (Link)

Re: "Rights" vs. "Constitutional rights"

But it does change according to the express will of the people. There are three arms to the government, and the judicial arm is not there to simply lay down punishment when a law is violated. It's job is to interpret that law within the framework of the Constitution.

If you think that the Constitution shouldn't be used to interpret for a modern age, then there are tons of amendments that need to be enacted right now because a judicial arm interpreted them already out of the Constitution.

And as far as making law or decisions for an entire nation based on the "momentary whims" of someone, we can always have a conversation regarding the invasion of Iraq…about as classic an example based on the momentary whims of the people (their representatives) as I've seen.

ideaphile From: ideaphile Date: August 6th, 2012 04:56 am (UTC) (Link)

Re: "Rights" vs. "Constitutional rights"

When a judge (or the whole Supreme Court) chooses to change the interpretation of the Constitution, he or she is usurping the authority that was specifically assigned to the Legislative branch by the Constitution itself.

This is traditionally known as "rule of men" as opposed to "rule of law." If individuals can change the function of the Constitution, the Constitution has no meaning.

I can also think of many ways in which I would change the Constitution, but I should never be given the authority to make those changes just because I feel strongly about them. Nor should anyone else.

I think we're on the same page regarding Iraq, but that is a different discussion.

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wendor From: wendor Date: August 6th, 2012 06:27 pm (UTC) (Link)

Re: "Rights" vs. "Constitutional rights"

An interesting quote to pick. If you read the entire letter, rather than just excerpts form it that you linked to, you will see that Jefferson is arguing for a system by which the Constitution can be amended or replaced at a new convention (the system we have now).

Jefferson did not advocate for the judicial branch to reinterpret laws and constitutions as times changed...he advocated for the legislature and the people to amend or replace them as times changed.

And to save space I'll also address your comment below "If you think that the Constitution shouldn't be used to interpret for a modern age, then there are tons of amendments that need to be enacted right now because a judicial arm interpreted them already out of the Constitution."

Agreed 100%. The judicial branch was never granted the power to extend the Constitution though interpretation. All of those, including the "right to privacy" need to be immediately ruled void until such time as an Amendment is passed adding them to the Constitution.

Remember, many of the Founders felt that the protection of inalienable rights was inherent in the Constitution...but still found it necessary to pass an Amendment protecting those rights.

Why would it seem reasonable that Speech, Press, Assembly, etc. would require Amendments protecting them, but Privacy would need none because it was "implied"?

The Douglas definition of "penumbra right to privacy" is one of the greatest miscarriages in the history of the Supreme Court. We NEED an Amendment specifically protecting the right of privacy. Remember, if you rely purely on an interpretation that extends the text, you can find that extension taken away at any time by a newer "interpretation" on the part of the same or higher court.
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