Excerpts From Bork Testimony, Writings as Scholar, Judge

From a Times Staff Writer

Following are excerpts from Robert H. Bork’s testimony and writings as a legal scholar and as a judge on the U.S. Circuit Court of Appeals for the District of Columbia:


“I am convinced . . . that Roe vs. Wade (which legalized abortion) is, itself, an unconstitutional decision, a serious and wholly unjustifiable judicial usurpation of state legislative authority. . . . The judiciary have a right, indeed a duty, to require basic and unsettling changes, and to do so, despite any political clamor, when the Constitution, fairly interpreted, demands it. The trouble is that nobody believes the Constitution allows, much less demands, the decision in Roe vs. Wade or in dozens of other cases of recent years.” (Testimony before Senate Judiciary Committee, June 1, 1981).

“This right to privacy . . . is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy. The detriment that the state would impose upon the pregnant woman by denying this choice altogether is apparent.


“Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation. . . .

“It may be only candid to say at this point that the author of this opinion, when in academic life, expressed the view that no court should create new constitutional rights; that is, rights must be fairly derived by standard modes of legal interpretation from the text, structure and history of the Constitution. These views are, however, completely irrelevant to the function of a circuit court judge. The Supreme Court has decided that it may create new constitutional rights and as judges of constitutionally inferior courts, we are absolutely bound by that determination.” (Opinion for D.C. Appeals Court in James L. Dronenburg vs. Vice Adm. Lando Zech, 1984).

The First Amendment

“Judges given stewardship of a constitutional provision--such as the First Amendment, whose core is known but whose outer reach and contours are ill-defined--face the never-ending task of discerning the meaning of the provision from one case to the next. It is the task of judges in this generation to discern how the framers’ values, defined in the context of the world they knew, apply to the word we know. The world changes in which unchanging values find their application. The Fourth Amendment was framed by men who did not foresee electronic surveillance. But that does not make it wrong for judges to apply the central value of that amendment to electronic invasions of personal privacy. The commerce power was established by men who did not foresee the scope of intricate independence of today’s economic activities. But that does not make it wrong for judges to forbid states the power to impose burdensome regulations on the interstate movement of trailer trucks.

“The First Amendment’s guarantee of freedom of the press was written by men who had not the remotest idea of modern forms of communication. But that does not make it wrong for a judge to find the values of the First Amendment relevant to radio and television broadcasting. So it is with defamation actions. We know very little of the precise intentions of the framers and ratifiers of the speech and press clauses of the First Amendment. But we do know that they gave into our keeping the value of preserving free expression, and in particular, the preservation of political expressions, which is commonly conceded to be the values at the core of those clauses.” (Opinion for D.C. Appeals Court in Ollman vs. Evans and Novak, 1984).

Majority Rule

“The model of government embodied in the structure of the Constitution . . . is not completely democratic, if by ‘democratic’ we mean completely majoritarian. It assumes that in wide areas of life majorities are entitled to rule for no better reason than they are majorities. . . . It assumes (also) there are some areas of life a majority should not control. There are some things a majority should not do to us no matter how democratically it decides to do them. These are areas properly left to individual freedom, and coercion by the majority in these aspects of life is tyranny.

“The court’s power is legitimate only if it has . . . a valid theory, derived from the Constitution, of the respective spheres of majority and minority freedom. If it does not have such a theory but merely imposes its own value choices, or worse if it pretends to have a theory but actually follows its own predilections, the court violates the postulates . . . that alone justify its power. It then necessarily abets the tyranny either of the majority or of the minority. . . .


“No argument that is both coherent and respectable can be made supporting a Supreme Court that ‘chooses fundamental values’ because a court that makes rather than implements value choices cannot be squared with the presuppositions of a democratic society. . . . The judge must stick close to the text and the history, and their fair implications, and not construct new rights. . . . The Griswold opinion (which said states could not forbid couples to use birth control devices) fails every test. . . . (It) is an unprincipled decision. . . . Unless we can distinguish forms of gratification, the only course for a principled court is to let the majority have its way. . . . There is no principled way to decide that one man’s gratifications are more deserving of respect than another’s.” ( Article in the Indiana Law Journal, fall, 1971).

The Bill of Rights

“The provisions of the Bill of Rights and the Civil War amendments (which ended slavery, provided equal protection under the law and gave blacks the vote) not only have contents that protect individual liberties, they also have limits. They do not cover all possible or even all desirable liberties. Freedom of speech covers speech, not sexual conduct. Freedom from unreasonable searches and seizures does not protect the power of businesses to set prices. The fact of limits means that the judge’s authority has limits and outside the designated areas, democratic institutions govern. ( Speech at the University of San Diego Law School, November , 1985).