The Right To Privacy By Robert Bork.

Essay, Research Paper

The Right to Privacy by Robert Bork.

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

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 Amendment?The Third Amendment in its prohibition

against the quartering of soldiers?The 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 Clause?The 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 events?that 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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