[CobaltBlue]

A long time ago, shortly after Judge Bork was borked, he gave a speech at Tulane (my alma mater). After the speech, during the question-and-answer session, I asked him about Griswold vs. Connecticut, the original "penumbra" case, and whether he agreed, regardless of the "penumbra" language, that there was a constitutional right to privacy.

Either he wasn't ready for the question or he agreed that there was some sort of right to privacy, because at the time he did not think that Griswold was wrongly decided. At least, that's my recollection. Maybe because I reminded him of this:

>>The poorest man may, in his cottage, bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England may not enter; all his force dares not cross the threshold of the ruined tenement.<<
Chatham's speech on General Warrants

In the case of McClurg vs. Brenton (123 Iowa, 368), the court, speaking of the right of an officer to enter a private house to search for stolen goods, said:
>>The right of the citizen to occupy and enjoy his home, however mean or humble, free from arbitrary invasion and search, has for centuries been protected with the most solicitous care by every court in the England-speaking world, from Magna Charta down to the present, and is embodied in every bill of rights defining the limits of governmental power in our republic.<<

Admittedly, the above cases have to do with warrantless searches, not contraception, which was the case in Griswold, but I think the principle is more general than that.

At any rate, I made Judge Bork think and he did not refute my argument.

[ninenot]

Griswold was decided based on the Lambeth Conference's "blessing" of contraception which erroneously invalidated another 3,000+ year old moral imperative.

Baird, far more to the point, was a commerce case, based on Griswold's conclusions.

Bork, BTW, is wrong on a lot of items, and a Constitutional "right to privacy" is one of them.

[colorado tanker]

I could not agree with you more concerning the need for the Bill of Rights to protect us against warrantless searches or searches without probable cause. The Framers were very careful and particular, however, about our privacy rights - they did not enshrine any general right to be let alone in the Constitution, and for good reason.

In hindsight, Griswold v. Connecticut was the camel's nose under the tent. It seemed so harmless. Connecticut had a boneheaded law against selling contraceptives. Why not find a right to marital privacy in the Constitution and strike a stupid law?

The reason why not is that now, a half century later, the Court has expanded the doctrine to where it sits as an unelected super-legislature on all laws relating to sex and morality. Not only that, but it believes it is entitled to write legislation or dictate to Congress how to draft legislation across vast subject areas.

This is not good for the long term health of our Republic. Respect for the law and judges diminishes year after year because they are no longer impartial arbiters of what the law says, but have become participants in the political process. So, they have little more respect than politicians. The real danger, however, is that because their decisions cannot be reviewed in the normal political process, they push people who disagree toward protest and violence. I submit that if abortion had been kept in the political process, as the Constitution clearly intends, we would not have seen the violence we've seen over the last 30 years. Activist courts are anti-democratic and endanger the future of our Republic.

BTW, I admire Judge Bork, regardless of his views on Griswold. In hindsight, losing the Bork nomination was probably a greater loss than losing the presidency in 1992. I think my view was more than born out by the results of this last SCOTUS term, very disappointing for conservatives.