7

The committee also received a letter signed by 32 law school deans.1 (Comm. Print Draft, Vol. 2, at 91-97.) This letter stated:

Judge Bork has developed and repeatedly expressed a com-
prehensive and fixed view of the Constitution that is at
odds with most of the pivotal decisions protecting civil
rights and liberties that the Supreme Court has rendered
over the past four decades. . . . If Judge Bork were to be
confirmed, his vote could prove determinative in turning
the clock back to an era when constitutional rights and
liberties, and the role of the judiciary in protecting them,
were viewed in a much more restrictive way. (Comm. Print
Draft, Vol. 2, at 92.)

Finally, the committee received a letter from 71 constitutional law professors, the text of which was identical to that signed by the law school deans. Three persons signed both this letter and the deans' letter. (Comm. Print Draft, Vol. 2, at 80-90.)

B. Opposition to Judge Bork's Confirmation Also Came from Other Professional Legal Groups

A large number of practicing lawyers and organized bar groups have also expressed their opposition to Judge Bork's confirmation. One such group is the Association of the Bar of the City of New York, which, through its Excutive Committee, testified against the confirmation. The Association, which is one of the oldest and most prestigious bar organizations in the country and which at present has almost 17,000 members, stated that Judge Bork's "fundamental judicial philosophy . . . appears to this Association to run counter to many of the fundamental rights and liberties protected by the Constitution." (Comm. Print Draft, Vol. 2, at 845.)

The Committee also heard testimony from John Clay, representing Lawyers for the Judiciary, a Chicago-based organization with more than 700 members, which opposes Judge Bork's confirmation. The statement of Lawyers for the Judiciary concludes that "Judge Bork's philosophy . . . puts him outside the mainstream of constitutional jurisprudence and would deny what our citizens regard as their basic, fundamental rights." (Comm. Print Draft, Vol. 3, at 2212.)

1 In a September 28 letter to the Chairman and ranking Member, James Vorenberg, Dean of the Harvard Law School, stated that while he was opposed to Judge Bork's confirmation, he did not intend to be listed as a signatory to the letter.

PART TWO: THE CONSTITUTION'S
UNENUMERATED RIGHTS

I. JUDGE BORK'S VIEW OF THE CONSTITUTION DISREGARDS THIS COUNTRY'S TRADITION OF HUMAN DIGNITY, LIBERTY AND UNENUMERATED RIGHTS

The Bork hearings opened on the eve of the celebration of the 200th anniversary of our Constitution. The hearings proved to be about that Constitution, not just about a Supreme Court nominee. The hearings reaffirmed what many understand to be a core principle upon which this nation was founded: Our Constitution recognizes inalienable rights and is not simply a grant of rights by the majority. Chairman Biden's opening statement identified these fundamental principles:

I believe all Americans are born with certain inalienable
rights. As a child of God, I believe my rights are not de-
rived from the Constitution. My rights are not derived
from any government. My rights are not derived from any
majority. My rights are because I exist. They were given to
me and each of my fellow citizens by our Creator, and they
represent the essence of human dignity. (Comm. Print
Draft, Vol. 1, at 68.)

This image of human dignity has been associated throughout our history with the idea that the Constitution recognizes "unenumerated rights." These are rights beyond those specifically mentioned in the Constitution itself, rights that are affirmed by the grand open-ended phrases of the document: "liberty," "due process,' "equal protection of the laws" and others. The sober responsibility of preserving the meaning and content of these rights has fallen to the judiciary, and especially to the Supreme Court.

Against this understanding of the Constitution, and of human dignity, Judge Bork offers an alternative vision-that Americans have no rights against government, except those specifically enumerated in the Constitution. The contrast was stated cogently by Professor Philip Kurland:

I think it makes all the difference in the world whether you start with the notion that the people have all the liberties except those that are specifically taken away from them, or you start with the notion, as I think Judge Bork now has, that they have no liberties except those which are granted to them. (Comm. Print Draft, Vol. 3, at 1391.) As Professor Kurland concluded: "I do not know of anything more fundamental in our Constitution" than the idea that the people have all the liberties except those specifically relinquished.

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A. Judge Bork's Judicial Philosophy Does Not Recognize the Concept of Unenumerated Rights and Liberties

1. Judge Bork's Core Theory

Judge Bork has consistently described his constitutional theory as "intentionalist," meaning that he considers it the function of a judge to determine the intentions of the body that wrote the laws and to apply those intentions to the case brought before the court. Interpreting law is thus a matter of discerning the original intent of those responsible for making it.

Judge Bork reaffirmed this view in his opening statement before the committee:

The judge's authority derives entirely from the fact that
he is applying the law and not his own personal values
How should a judge go about finding the law? The
only legitimate way is by attempting to discern what those
who made the law intended. The intentions of the lawmak-
ers govern, whether the lawmakers are the Congress of the
United States enacting a statute or those who ratified our
Constitution and its various amendments. (Comm. Print
Draft, Vol. 1, at 78-79.)

At the end of four and one-half days of testimony, Judge Bork confirmed that he had not altered his basic philosophy:

[T]here is much in my earlier writings-most particularly,
my views on the proper role of judges and the need for
faithful adherence to the text and the discernible inten-
tions of the ratifiers of the Constitution and statutes-that
I subscribe to just as fully today as I did before. . . . If the
Members of the Committee are looking, as you have said
you are, for predictability, it is certainly predictable that I
will adhere to my judicial philosophy as I have described it
in these hearings and elsewhere. (Comm. Print Draft, Vol.
1, at 721.) 2

2. Judge Bork's Judicial Philosophy Leads Him to Conclude
that the Constitution "Specified Certain Liberties and
Allocates All Else to Democratic Processes"

The implications of Judge Bork's theory of original intent are quite clear from his writings, speeches and testimony. The most dramatic consequence of his theory is the rejection of the concept of unenumerated rights and liberties. He has consistently held to the view, both before and during the hearings, that the Constitution should not be read as recognizing an individual right unless

2 Judge Bork did not always rely on orginal intent and the text of the Constitution for the resolution of constitutional controversies. As he wrote in 1968:

The text of the Constitution, as anyone experienced with words might expect, is least precise where it is most important. Like the Ten Commandments, the Constitution enshrines profound values, but necessarily omits the minor premises required to apply them. History can be of considerable help, but it tells us much too little about the specific intentions of the men who framed, adopted, and ratified the great clauses. The record is incomplete, the men involved had vague or even conflicting intentions, and no one foresaw or could have foreseen, the disputes that changing social conditions and outlooks would bring before the Court....("The Supreme Court Needs a New Philosophy," Fortune 138, 141, (Dec. 1968).

10

that right can be specifically found in a particular provision of the document.3

In particular, Judge Bork has repeatedly rejected the well-established line of Supreme Court decisions holding that the "liberty" clauses of the Fifth and Fourteenth Amendments protect against governmental invasion of a person's substantive personal liberty and privacy. He has said, for example, that:

[T]he choice of "fundamental values" by the Court cannot
be justified. Where constitutional materials do not clearly
specifiy the value to be preferred, there is no principled
way to prefer any claimed human value to any other. The
judge must stick close to the text and the history, and
their fair implications, and not construct new rights.
("Neutral Principles and Some First Amendment Prob-
lems," 47 Indiana Law Journal 1, 8 (1971).)

Judge Bork has also disregarded the text of the Ninth Amendment, which provides that "[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." In Judge Bork's view, while there are alternative explanations for the Amendment,

if it ultimately turns out that no plausible interpretation can be given, the only recourse for a judge is to refrain from inventing meanings and ignore the provision, as was the practice until recently. ("Interpretation of the Constitution," 1984 Justice Lester W. Roth Lecture, University of So California, October 25, 1984, at 16; emphasis added.) 4 This suggested disregard for the Amendment is consistent with Judge Bork's general recommendation about a judge's role "when his studies leave him unpersuaded that he understands the core of what the Framers intended" with respect to a particular constitutional provision:

[The judge] must treat [the provision] as nonexistent, since,
in terms of expression of the framers' will, it is nonexist-
ent. . . . When the meaning of a provision . . . is un-
known, the judge has in effect nothing more than a water
blot on the document before him. He cannot read it; any
meaning he assigns to it is no more than judicial invention

3 In response to a question by Senator DeConcini, Judge Bork testified that he believed there were "some rights that are not enumerated but are found because of the structure of the Constitution and government." (Comm. Print Draft, Vol. 1, at 224.) These "structural" rights, which "the individual [has] for the sake of a governmental process that the Constitution outlines" ("Neutral Principles" at 17), are wholly distinct from "unenumerated rights" as that phrase is ordinarily used. These latter rights preserve individual liberties in the face of government's desire to override them, and are rights retained by the people, rather than rights given to them by the majority. It is the tradition recognizing these rights that is the subject of this Section. Judge Bork did not always believe that the Ninth Amendment should be ignored. In 1968, he argued:

Legitimate activism requires, first of all, a warrant for the court to move beyond the range of substantive rights that can be derived from the traditional sources of constitutional law. The case for locating this warrant in the long-ignored 9th Amendment was persuasively made by Justice Arthur Goldberg (in Griswold v. Connecticut, 381 U.S. 479 (1965)]. ... This seems to mean that the Bill of Rights is an incomplete, open-ended document, and that the work of completion is, at least, in major part, a task for the Supreme Court. There is some historical evidence that this is substantially what Madison intended. ("The Supreme Court Needs a New

11

of a constitutional prohibition; and his proper course is to
ignore it. (Id. at 11-12; emphasis added.) 5

According to Judge Bork, "[t]he Constitution specified certain liberties and allocates all else to democratic processes." ("Judicial Review and Democracy," Society, Nov./Dec. 1986 at 7; emphasis added.) Thus, under Judge Bork's view, the court interferes with the "democratic process" whenever it recognizes a right that is not specified in the Constitution. As he said in a 1985 speech and reaffirmed at the hearings, the Constitution is essentially a zero-sum system, in which rights for some necessarily come only at the expense of others:

Senator SIMON. One point, at a speech at Berkeley in 1985, you say . . .' [When] a court adds to one person's constitutional rights it subtracts from the rights of others.' Do you believe that is always true?

Judge BORK. Yes, Senator. I think it's a matter of plain arithmetic.

Senator SIMON. I have long thought it is kind of funda-
mental in our society, that when you expand the liberty of
any of us, you expand the liberty of all of us.

Judge BORK. I think, Senator, that is not correct. (Comm.
Print Draft, Vol. 1, at 289, 421; emphasis added.)

B. This Nation Was Conceived with the Recognition of Pre-existing Inalienable Rights that the Constitution Does Not Specifically Enumerate But Nonetheless Acknowledges and Protects The founding documents of American constitutionalism-the Declaration of Independence, the Constitution and the Bill of Rights-were accepted not because they exhausted the protection of basic rights but because they expressly protected unenumerated rights as well. Indeed, the Constitution was conceived to create a national government that although sufficiently powerful to bind together diverse states, "would not threaten the individual liberty that the people retained and did not cede to any level of government." (Written statement of Professor Laurence H. Tribe, Comm. Print Draft, Vol. 2, at 18-19.)

The broad purposes of this plan are clear from the language of the founding documents. As former Congresswoman and Professor Barbara Jordan testified: "The Declaration of Independence preceded the Constitution, and the Declaration of Independence speaks of inalienable rights endowed by our Creator . . ., among them life, liberty, [and the] pursuit of happiness." (Comm. Print Draft, Vol. 1, at 787.) The Fifth Amendment states that no person shall be deprived of "liberty." The Ninth Amendment mandates that "[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Finally, the Fourteenth Amendment-with its specific protection of "liber

5 These statements cannot be squared with either Judge Bork's own framework for interpreting the Constitution or the clear statements of the Supreme Court. Indeed, they are in direct conflict with the position of the revered Chief Justice, John Marshall, who stated in Marbury v. Madison, 1 Cranch 137, 174 (1803): "It cannot be presumed that any clause in the Constitution is intended to be without effect."