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Bork's words, "the basis for a large array of social and economic institutions, [therefore] overruling them would be disastrous." (Comm. Print Draft, Vol. 1, at 102.) If such institutions have not grown up around Bill of Rights cases, they are to that extent easier to reform. As Professor Grey explained:

These examples [of the Commerce Clause and the Legal
Tender Cases] illustrate the very weak character of the
constraints imposed by precedent on the overruling of "er-
roneous" constitutional precedent. In both cases, the pro-
tected precedents expanded governmental power. In both
cases, any attempt to overrule them would involve social
upheavals of vast dimensions, and would be completely im-
practical. Decisions defining and protecting individual
constitutional rights rarely if ever are so socially en-
trenched. It is difficult to think of any individual rights
decision or line of decisions that, if overruled, would
present the intractable practical difficulties posed by the
cases Judge Bork has used as examples. Indeed, I have
not found any example in his pre-nomination discussions
of the doctrine of precedent of any constitutional deci-
sion protecting individual rights that he identifies as even
presumptively immune from overruling. (Grey Statement,
Comm. Print Draft, Vol. 2, at 1108; emphasis added.)

During the committee hearings, Judge Bork for the first time made some specific references to individual rights decisions that were, in his view, "settled." They were Brandenburg, Shelley v. Kraemer and Bolling v. Sharpe, and some of the freedom of the press cases. Each is, to varying degrees, difficult to square with Judge Bork's announced criteria for refusing to overrule a decision. Even putting that aside, however, there still is a tremendous area-in which the Court has given content to unenumerated rights and liberties--where his prior stated positions are not in the least constrained by his statements before the committee concerning settled law.

D. Judge Bork's Statements About the Application of Settled Law to Old Conflicts Say Little About His Willingness to Apply the Tradition of Unenumerated Rights to New Conflicts Between Government and the Individual that May Arise

The Supreme Court's prior decisions, whether settled or not, cannot cover all new situations, under even the broadest reading of those cases. It is in the context of these new cases that Judge Bork's theory of original intent would stand without any of the contraining influence of precedent. Thus, "Judge Bork's record is . . . a source of concern because of what it reveals about how he is likely to approach novel issues of liberty and equality that will emerge in the years ahead, issues where a Justice has a leeway that is not closely channelled by precedent." (Gewirtz statement, Comm. Draft Print, Vol. 2, at 1186.)

In the committee's view, respect for precedent, as Judge Bork expressed it, does not alleviate the concern that the nominee would pursue his particular theory of original intent. It does not remove

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and human dignity would be robbed of their generative force. And it in no way compensates for his rejection of the tradition of unenumerated rights, a tradition that must be maintained to deal with new issues as they arise in the future.

PART THREE: A CRITICAL ANALYSIS OF JUDGE BORK'S POSITIONS ON LEADING MATTERS

I. THE RIGHT TO PRIVACY-THE RIGHT TO BE LET ALONE A. Before the Hearings, the Right to Privacy Had Been a Principal Part of Judge Bork's Attack on the Supreme Court

The constitutional right to privacy or, in Justice Brandeis's words, the right to be let alone, has been a major part of Judge Bork's attack on the jurisprudence of the Supreme Court. In 1971, for example. he denounced the first modern privacy decision, Griswold v. Connecticut, 381 U.S. 479 (1965), as "unprincipled" and "intellectually empty." Griswold concerned a law making it a crime for anyone to use birth control. Judge Bork said that the desire of a "husband and wife to have sexual relations without unwanted children" was indistinguishable, for constitutional purposes, from the desire of an electric utility company to "void a smoke pollution ordinance." "The cases," he said, "are identical." ("Neutral Principles" at 8-9.)

Judge Bork reiterated his attack on Griswold after becoming a federal court judge. In a 1982 speech, he said that "the result" in the case could not "have been reached by interpretation of the Constitution." (Catholic University Speech at 4.) In 1985, he announced that there was no "supportable method of reasoning underlying" Griswold. (Conservative Digest Interview, October 1985, at 97.) In 1986, he declared that replacing the approach in Griswold with a "concept of original intent" is "essential to prevent courts from invading the proper domain of democratic government." ("The Constitution, Original Intent, and Economic Rights," 23 San Diego L. Rev., 823, 829 (1986).)

In an interview given after he was nominated to the Supreme Court, Judge Bork was asked: "But your core views on privacy expressed in [the 1971 Indiana Law Journal article]-you still believe?"

Answer. "Yes. I agreed with Justice Black, who dissented
in that case, Griswold v. Connecticut." (July 29, 1987, St.
Louis Post-Dispatch.)

Judge Bork's attacks on the privacy right have extended to the principal cases upon which Griswold relied, and would extend, presumably, to all the cases subsequent to Griswold, although Judge Bork has identified only Roe v. Wade by name. (Hearings Before the Subcommittee on Separation of Powers of the Senate Judiciary Committee, 97th Cong., 1st Sess., June 10, 1981, at 310.)

One of the cases relied upon by the Court in Griswold was Skinner v. Oklahoma, 316 U.S. 535 (1942). There, the Supreme Court unanimously set aside a state law that imposed sterilization upon

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certain common criminals, but not upon embezzlers or other white collar criminals. Said the Court: "We are dealing here with legislation which involves one of the basic rights of man. Marriage and procreation are fundamental to the very existence and survival of the race." (Id. at 541.) Judge Bork has analyzed Skinner as follows: All law discriminates and thereby creates inequalities. The Supreme Court has no principled way of saying which nonracial inequalities are impermissible. What it has done, therefore, is to appeal to simplistic notions of "fairness" or to what it regards as "fundamental interests," in order to demand equality in some cases but not in others, thus choosing values and producing a line of cases [such as] Skinner. ("Neutral Principles" at 11-12.)

In speeches and writings after he became a judge, the nominee has also said that the "right of procreation' . . . is another madeup constitutional right . . . Neither it [nor the right] to privacy are to be found anywhere in the Constitution." 6 ("Foundations of Federalism: Federalism and Gentrification," Yale Federalist Society, April 24, 1982, at 9 of the Question and Answer Period; see also "The Struggle Over the Role of the Courts," National Review, September 17, 1982, 1137, 1138; "A Conference on Judicial Reform," Free Congress and Education Foundation, June 14, 1982, at 6.)

Judge Bork addressed the Supreme Court's line of privacy decisions in two opinions on the Court of Appeals. In Dronenburg v. Zech, 741 F.2d 1388 (D.C. Cir. 1984), he wrote that the Supreme Court had created "new rights" in the privacy cases. Judge Bork recited the holdings in a number of those cases and concluded that since they lacked an "explanatory principle," (id. at 1395-96), lower court judges could not determine how to apply them in new

cases.

In Franz v. United States, 707 F.2d 582 (D.C. Cir. 1983), Judge Bork went out of his way in his concurring opinion to criticize the majority opinion for finding that the privacy decisions of the Supreme Court implied some constitutional protection for the right of a non-custodial father to maintain visitation rights with his child. Judge Bork argued that the right of privacy was "ill-defined," and that "[s]ince the Constitution itself provides neither textual nor structural guidance to judges embarked upon this chartless sea, it behooves us to be cautious rather than venturesome." (707 F.2d at 1438.)

As a lower court judge, the nominee was, of course, bound to abide by Griswold and its progeny. Judge Bork acknowledged this very point in Dronenburg, stating that his arguments against Griswold and the other privacy cases were "completely irrelevant to the function of a circuit judge. The Supreme Court has decided that it may create new constitutional rights and, as judges of constitutionally inferior courts, we are bound absolutely by that determination." (Dronenburg, 741 F.2d at 1396 n. 5.) In the committee's view,

During the hearings, Judge Bork suggested that he might have reached the same result the Court did in Skinner by applying a "reasonableness test" under the Equal Protection Clause. Whether or not he would do so, however, Judge Bork has made clear that he rejects the right of procreation in Skinner.

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however, Judge Bork's opinions in Dronenburg and Franz suggest that there is a significant risk that he would vote to overrule Griswold and the other privacy cases if freed of the constitutional and institutional constraints that limit a lower court judge.

Judge Bork's strong attack on the Court's line of privacy decisions left no doubt before the hearings about his position. In an interview given just before coming before the committee, however, Judge Bork interjected into his discussion of Griswold what might be construed as a qualification:

The court did not dispose of it in a logical way, on the
basis of sound constitutional reasons. A lot of cases in
which the court's reasoning isn't adequate might conceiv-
ably come out the same way on adequate reasons. I [once]
said something rather harsh about Roe v. Wade, but [what
I said] really applied more to the line of reasoning that
was followed. ("Sentences From the Judge," Newsweek,
September 14, 1987, at 36.)

This proferred distinction between the Court's reasoning and the result it reaches was a major topic at the hearings.

B. At the Hearings, Judge Bork Confirmed His Pre-Hearing Views About a Right to Privacy

At the hearings, Judge Bork repeated in various ways the claim that although "[t]here is a lot of privacy in the Constitution," (Comm. Print Draft, Vol. 1, at 217), there is no "generalized" right to privacy of the kind necessary to support Griswold and its progeny. He testified that in the Constitution there is no "unstructured, undefined right of privacy [such as the right] that Justice Douglas elaborated [in Griswold]." (Comm. Print Draft, Vol. 1, at 87.) Senator Simpson and Judge Bork engaged in the following exchange:

Senator SIMPSON. I want to ask you if it is fair to say
that you believe that privacy is protected under the Consti-
tution, but that you just do not believe that there is a gen-
eral and unspecified right that protects everything. . . . Is
that correct?

Judge BORK. That is correct, Senator. (Comm. Print
Draft, Vol. 1, at 217.)

When Senator Hatch queried him about Justice Black's view of the "so-called privacy right," Judge Bork seemed to endorse the view that the right "was utterly unpredictable." (Comm. Print Draft, Vol. 1, at 157.) He described his objection to a "generalized" right to privacy:

Nobody knows what that thing means. But you have to define it; you have to define it. And the court has not given it definition. That is my only point. (Comm. Print Draft. Vol. 1, at 218.)

At this juncture, Judge Bork's objection seemed to be that the Court had not defined the privacy right sufficiently, so that it is "utterly unpredictable."

It became clear, however, that Judge Bork also believes that