This view severely restrictsjudges in dealing with new issues that our forefathers could not have possiblyenvisioned. The inability of “originalist” to deal with modern and futureproblems displays a need for Supreme Court judges to be able to interpret lawsfrom the Constitution. Without this ability it would be doubtful if peopletoday could claim a general right to privacy. The Griswald case involved a bizarre law that forbade the use of condoms in thehope that it would prevent adulterous affairs.
This deduction is as absurd asbanning all sales of chocolate in order to prevent obesity. Robert Bork admitted that this law did not make sense, especially in the abilityof government officials to enforce the law. Yet, Bork disagreed with the methodused by Justice Douglas to overturn the conviction of two doctors distributinginformation on condoms. Bork felt that Douglas’s liberal use of penumbras tocreate a zone of privacy was an excessive use of judicial power. Bork feels ajudge must follow the Constitution and should not imply anything from thevarious ideas in the Constitution.
This poses problems when trying to deal withcases that the Constitution does not specifically mention. For example, withoutthe ability to interpret some of the various amendments in the constitution itwould 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 (Thatis not specifically liable for the information that it disseminates)? Thesetypes of decisions cannot be solved with an “originalist” view, because theConstitution did not have the foresight to deal with such issues. In this samemanner Justice Douglas implements penumbras to arrive at a general right ofprivacy that is not explicitly written into the Constitution.
These penumbrasare all valid within the spirit of the Constitution and does not go againstanything specifically forbidden in the document. Thus, the justification ofJustice Douglas to create a zone of privacy is legitimate and the old archaicGriswald laws is forever vanquished into the history books. Justice Douglaswrites;”Various guarantees create zones of privacy. The right of association containedin the penumbra of the First AmendmentThe Third Amendment in its prohibitionagainst the quartering of soldiersThe Fourth Amendment explicitly affirms ‘theright of the people to be secure in their persons, houses, papers, effects,against unreasonable searches and seizures’The Fifth Amendment in its SelfIncrimination ClauseThe Ninth Amendment provides: ‘The Enumeration in theConstitution, of certain rights, shall not be construed to deny or disparageothers retained by the people. ” (Pg. 124)Bork also complained that Justice Douglas was being quite the alarmist byimplying 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 assuringto my own peace of mind, when one defends an offensive law by stating that it’snever going to be used. It only takes one ambitious politician to selectivelyenforce these laws for their own prejudice or gain. Bork complained that Douglasimagined “horrible eventsthat never happened, never will, and could be stoppedby the courts if they ever seemed about to happen.
” (Pg. 134) It should havedawned upon Mr. Bork that Justice Douglas and his colleagues was precisely thecourt that would stop those horrible events from ever happening. The “originalist” philosophy is admirable in its use of such a strict disciplinein interpreting the Constitution, yet the ultimate lack of flexibility inaddressing modern problems in the Constitution is far to binding. The role ofjudges is ultimately based upon arbitrating what is right or wrong from the lawsthemselves, but when a problem arises that is not addressed within thelaws/Constitution, then judges must be able to imply decisions based on thegeneral spirit of the original document.
Basically, if the Constitution does notspecifically prohibit a right, and most amendments concur with that right, thenit is permissible for judges to create rights like privacy. It would be mostproblematic if we had a strict “originalist” judicial history because blackswould be only 3/5 of a person, women would never have been enfranchised, and theSenate would still be chosen by the House of Legislature. The Supreme Court (consisting of the most learned and able legal experts in thecountry) should have the ability to interpret certain aspects of theConstitution in order to prevent the Constitution from becoming a dated,historical document. Problems will continue to rise that the fathers of thiscountry could not have possibly envisioned.
Robert Bork’s “originalist” view isfar too restrictive in practice to allow the Constitution to be as vital todayas it was 200 years ago.Law