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The Right to Privacy by Robert Bork.

The Right to Privacy by Robert Bork.

Robert Bork’s The Right of Privacy examined the landmark case Griswald v.

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Conneticut. Bork’s “originalist” view proclaimed that Justice Douglas
erroneously interpreted the right of privacy from the Constitution. The
originalist view is that judges must strictly adhere to the language of the
Constitution, thus people do not have a general right to privacy because it was
never actually written into the Constitution. This view severely restricts
judges in dealing with new issues that our forefathers could not have possibly
envisioned. The inability of “originalist” to deal with modern and future
problems displays a need for Supreme Court judges to be able to interpret laws
from the Constitution.Without this ability it would be doubtful if people
today could claim a general right to privacy.

The Griswald case involved a bizarre law that forbade the use of condoms in the
hope that it would prevent adulterous affairs. This deduction is as absurd as
banning all sales of chocolate in order to prevent obesity.

Robert Bork admitted that this law did not make sense, especially in the ability
of government officials to enforce the law. Yet, Bork disagreed with the method
used by Justice Douglas to overturn the conviction of two doctors distributing
information on condoms. Bork felt that Douglas’s liberal use of penumbras to
create a zone of privacy was an excessive use of judicial power. Bork feels a
judge must follow the Constitution and should not imply anything from the
various ideas in the Constitution. This poses problems when trying to deal with
cases that the Constitution does not specifically mention. For example, without
the ability to interpret some of the various amendments in the constitution it
would be virtually impossible for a judge to decide cases dealing with the on-
line world. Is an on-line service provider similar to a magazine publisher
(Responsible for the information that it disseminates) or like a bookstore (That
is not specifically liable for the information that it disseminates)? These
types of decisions cannot be solved with an “originalist” view, because the
Constitution did not have the foresight to deal with such issues. In this same
manner Justice Douglas implements penumbras to arrive at a general right of
privacy that is not explicitly written into the Constitution. These penumbras
are all valid within the spirit of the Constitution and does not go against
anything specifically forbidden in the document. Thus, the justification of
Justice Douglas to create a zone of privacy is legitimate and the old archaic
Griswald laws is forever vanquished into the history books. Justice Douglas
“Various guarantees create zones of privacy. The right of association contained
in the penumbra of the First AmendmentThe Third Amendment in its prohibition
against the quartering of soldiersThe Fourth Amendment explicitly affirms ‘the
right of the people to be secure in their persons, houses, papers, effects,
against unreasonable searches and seizures’The Fifth Amendment in its Self
Incrimination ClauseThe Ninth Amendment provides: ‘The Enumeration in the
Constitution, of certain rights, shall not be construed to deny or disparage
others retained by the people.” (Pg.124)
Bork also complained that Justice Douglas was being quite the alarmist by
implying that the Griswald case would never be enforced. “There was, of course,
no prospect that it ever would be enforced.” (Pg. 133) It is not very assuring
to my own peace of mind, when one defends an offensive law by stating that it’s
never going to be used. It only takes one ambitious politician to selectively
enforce these laws for their own prejudice or gain. Bork complained that Douglas
imagined “horrible eventsthat never happened, never will, and could be stopped
by the courts if they ever seemed about to happen.” (Pg. 134) It should have
dawned upon Mr. Bork that Justice Douglas and his colleagues was precisely the
court that would stop those horrible events from ever happening.

The “originalist” philosophy is admirable in its use of such a strict discipline
in interpreting the Constitution, yet the ultimate lack of flexibility in
addressing modern problems in the Constitution is far to binding. The role of
judges is ultimately based upon arbitrating what is right or wrong from the laws
themselves, but when a problem arises that is not addressed within the
laws/Constitution, then judges must be able to imply decisions based on the
general spirit of the original document. Basically, if the Constitution does not
specifically prohibit a right, and most amendments concur with that right, then
it is permissible for judges to create rights like privacy. It would be most
problematic if we had a strict “originalist” judicial history because blacks
would be only 3/5 of a person, women would never have been enfranchised, and the
Senate would still be chosen by the House of Legislature.

The Supreme Court (consisting of the most learned and able legal experts in the
country) should have the ability to interpret certain aspects of the
Constitution in order to prevent the Constitution from becoming a dated,
historical document. Problems will continue to rise that the fathers of this
country could not have possibly envisioned. Robert Bork’s “originalist” view is
far too restrictive in practice to allow the Constitution to be as vital today
as it was 200 years ago.


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