[Do not dub me shapka broham]

Roe became possible only because Griswold had created a new right, and anyone who reads Griswold can see that it was not an adjustment of an old principle to a new reality but the creation of a new principle by tour de force or, less politely, by sleight of hand.

When we say that social circumstances have changed so as to require the evolution of doctrine to maintain the vigor of an existing principle we do not mean that society's values are perceived by the judge to have changed so that it would be good to have a new constitutional principle.

The difference is between protecting that privacy guaranteed by the fourth amendment-the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures"-and by requiring a warrant for government to listen electronically to what is said in the home and expanding that limited guarantee of privacy into a right not only to use contraceptives but to buy them, into a right to have an abortion, into a right, as four Justices of the Supreme Court would have it, to engage in homosexual conduct, into rights, as a number of professors would have it, to smoke marijuana and engage in prostitution.

If one cannot see where in that progression the adjustment of doctrine to protect an existing value ends and the creation of new values begins, then one should not aspire to be a judge or, for the matter of that, a law professor.

-Robert H. Bork

-The Tempting of America

[668 - Neighbor of the Beast]

Reading The Tempting of America is absolutely essential to this discussion. To people who have not read it, Bork's assertion that there is no right of privacy in the Constitution is incomprehensible.