This got me to thinking. Some years ago I read a book which discussed, among other things, Judge Bork’s idea of a constitutional “right of moral gratification.” (I can’t remember the author [Garry Wills?] or title, and right now I’m living in Russia, so I can’t just wander down to the library for a cite. If I am remembering wrong, well, sorry.)
Judge Bork said that the right of moral gratification has the same force as any other right, and thus, if a community finds that most of its members are morally gratified by knowing that a certain sexual act, for instance, is illegal and punishable, there is no individual right that could constitutionally bar the community from enacting a law against the activity. Judge Bork extended the penumbra of this right to cover many of the things that we take for granted as rights under the First Amendment, and we can easily imagine its application against the “right of privacy” generalisation that fueled the “Griswold” and “Roe” decisions.
My question is this. Judge Bork is a conservative avatar. If my community wanted to ban all firearms, could his concept be invoked to support such an action? After all, the Ninth Amendment could certainly include a “right to be morally gratified” by knowing that firearms were illegal, and their possession punishable. Equally, if a plurality of voters were “morally gratified” by the existence of the right to shoot smack, well, wouldn’t that be constitutionally protected as well?
Now I know that Judge Bork said essentially that we should ignore the very existence of the Ninth Amendment (was he the “water blot” guy, or was that Scalia?), but I don’t see how in a strict construction we can.
This is peripheral to the main question. As I recall, Bork said that the courts ** have ignored** the very existence of the 9th Amendment, not that they should ignore it.
Maybe some lawyer can tell us whether Bork was correct or not in his statement about how the courts had been ruling.
The idea of using some “right of moral gratification” to abrogate the 2nd Amendment seems far-fetched. Using the same reasoning, one could abrogate the entire Constitution.
Come to think of it, the Senate just voted 59 to 41 that it’s OK to prohibit private organizations from running political ads 60 days before an election. Maybe they think the Constitution has already been abrogated.
Considering that more than half of those 59 votes came from opponents of campaign finance reform, the most logical conclusion is that they voted for the provision knowing it was unconstitutional, with the intent to scuttle the whole bill. Now that the Senate has rejected the non-severability clause, the courts can easily rule that the ban on ads is unconstitutional without having to invalidate the entire act. In fact, without the non-severability clause, I would bet that most of the reform opponents who voted for the ad ban will reverse their votes if it comes up again.
And just to get this thread back on topic, Bork is a complete kneebiter. Discuss.
December is dead on; this purported right to moral gratification in the 9th Amendment wouldn’t trump the 2nd Amendment.
Bork’s concept of majority/minority rights demonstrates a misapprehension of the role of the judiciary. In a democracy, the judiciary’s role is to prevent the tyranny of the majority from trampling the rights of the minority. I’m not saying that Bork is right or wrong on any particular issue, but that his approach is wrong. The appropriate question (in shorthand) is whether there is a legitimate governmental interest in infringing on the rights of persons with the minority viewpoint.
Every time I hear Robert Bork’s name, I think of the newsgroup:
alt.swedish.chef.bork.bork.bork
Incidentally, the title of this thread sounds a little weird. I mean, I can understand a desire to shoot and sodomize Jodge Bork, but why ask me to do it?
I was referring to the final Senate vote. The 59 Ayes consisted of (I think) 47 Democrats and 12 Republicans. The pubbie Aye voters were McCain and a handful of liberal pubbies. I believe that these Senators are supporters of CFR. As MG points out, because of severability, there would be no reason for an opponent of CFR to vote for an un-Constitutional provision. The Supremes would (hopefully) throw it out, but the rest of the law would remain.
Essentially the same people who voted for the ban on issue ads tabled an amendment to make McCain-Feingold **non-**severable. Thus, if the ban on issue ads was deemed unconstitutional, the entire law would be thrown out. Their hope was to insert a “poison pill” into the bill.
The non-severability amendment was defeated.
Personally, that “moral gratification” garbage sounds like the biggest slippery slope I’ve ever seen. I thought the whole point of the Bill of Rights was to protect individual rights from being subject to the whim of society. While the reasoning in Griswold was a bit forced, it makes sense to say that by reading the Bill of Rights and some of the later ammendments a right to privacy seems to emerge as a guiding principle.
As Brandeis said in Oswald v. US many yeaars before (though in a dissenting opinion) “The makers of our Constitution… conferred, as against the government, the right to be let alone—the most comprehensive of rights and the right most valued by civilized men.” The basic idea is that the Constitution guarantees our rights from government interference. In this model, a right to have the government regulate others’ behaviour to satisfy a sense of moral gratification makes no sense.
Or, to use the terminology from the Declaration of Independence, we can expect the government to defend our right to pursue happiness, whether in the form of sodomy or “moral gratification”. The government is not empowered to actually provide moral gratification any more than it can be expected to provide sexual gratification.
Sounds to me like Bork was just trying to rationalize an end-run around Griswold to attack abortion and gay rights, using terms that sounded just good enough to show a pretense of sound legal reasoning. Good thing he didn’t make it to the Supreme Court. While I like having Scalia there, Bork instead of Kennedy (I seem to recall that being the trade) would be a bit much. Kennedy at least objects to an actual repeal of Roe v. Wade, even if he’s no fan of abortion rights.
Hey wait a minute- do you mean that if Judge Bork had been confirmed, I could have demanded sexual gratification from the government? Damn DAMN DAMN!!!
