Judge Bork was powerless to roll back this tide, but he refused to abide its logic. On close examination, Griswold’s vaunted penumbras were, he found, a perversion of the “unexceptional proposition” that it is “sometimes necessary to protect actions or associations not guaranteed by the Constitution in order to protect an activity that is.” For example, by shielding a political organization’s membership list from disclosure, a court vouchsafes the group’s undeniable First Amendment rights. In such circumstances, even though unstated in the Constitution, a penumbral right must be accorded; otherwise, the Constitution’s actual, enumerated rights are rendered illusory.
But the penumbral right “has no life of its own” independent of the enumerated right. Bork thus pierced the folly of Griswold and its progeny: the unjustifiable leap from the unavoidably penumbral aspects of specific Bill of Rights amendments to the fabrication of “a general right of privacy that lay outside” those guarantees (emphasis added). Absent tethering to the Constitution’s written protections, privacy would become whatever a judge subjectively thought it should be, rather than what “We the People of the United States” objectively undertook to safeguard. Bork would have none of it. Nothing prevented Americans from enacting laws to integrate gay men and women into the armed forces, but they would have to do it themselves. He would not pretend that the Constitution required it.
Read the rest of Andrew C. McCarthy on Judge Robert Bork.