Who's to judge what an American's right to privacy is?
Certainly not a Supreme Court justice, posited Robert H. Bork at a forum on ethics and law last weekend at St. John's College in Annapolis.
The speech by Bork, who was nominated to the Supreme Court in 1987 but rejected by the Senate, was warmly received by the overflow crowd of 615 judges, lawyers, students and townsfolk, who paid $25 each to attend Saturday.
After a question-and-answer session, the group broke into 28 separate round-table seminars, where citizens were goaded to consider questions such as "Should legislators seek to make men better?" and "Does it belong to human law to repress all vices?"
Bork is the high priest of the constitutional "textualists," who argue for a strictly literal interpretation of the Constitution.
"Making the laws is not the judge's job, applying them is," Bork said, "If the judge begins to make law, the law will reflect his morality -- and not society's."
The so-called "privacy right," Bork said, was "concocted out of thin air" by former Supreme Court Justice William Douglas in a 1965 decision striking down an ancient Connecticut statute forbidding the use of contraceptives.
Waving this "illegitimately" contrived right aside, Bork was able to proceed with his second main point -- that only elected representatives should legislate morality.
"The question is not whether we legislate morality, but whether we legislate the right morality" on moral issues such as abortion and sodomy, Bork said.
The "right" morality in a constitutional democracy, he said, would be the one arrived at either in Congress or the state legislatures through rigorous debate.
"So if it's not specifically mentioned in the Constitution, you're saying we're subject to the will of the majority?" he asked, mocking an incredulous liberal friend. "Yes. And I don't think it's such a bad system."
Since his nomination to the Supreme Court was rejected after a nationwide partisan feud, Bork has remained active. He has written a best-selling book about his rejection, called "The Tempting of America: The Political Seduction of the Law," and fetched five-digit speaking fees as the John M. Olin Scholar in Legal Studies at the American Enterprise Institute for Public Policy Research in Washington.
Even with the approximately $15,000 in ticket receipts from Saturday's event, St. John's spokeswoman Donna Boetig said the college did not expect to break even on the event after paying for Bork's speaking fee and lunch for the audience.
"We do this to spread the word about the seminar teaching method at St.
John's. It gives the townspeople, at least in small part, the feeling of what it's like to study here," Boetig said.
Bork's drawing power made the "Ethics & Law" symposium far and away the most popular in the seven-issue series sponsored by the college over the last three years.
Next spring, the topic will be Ethics & Religion, followed by Ethics & Education next fall.