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Privacy Is a Right Bork Would Ruin : No Protection for a Wide Array of Intimate Matters

July 19, 1987|KATHLEEN SULLIVAN | Kathleen Sullivan teaches constitutional law at Harvard Law School.

Imagine a world in which it was up to your state legislature to decide whether you could have sex or children. Imagine further that a majority of your neighbors could decide which members of your family could live with you in your own home. According to Judge Robert H. Bork, President Reagan's choice for a seat on the Supreme Court, such a world would be perfectly constitutional.

What would be missing from that world is privacy--a realm of freedom for intimate sexual and family affairs. The Supreme Court has acknowledged the importance of such a realm for most of this century. The court has struck down laws requiring the sterilization of chicken thieves, banning interracial marriage and making a married couple's use of contraceptives a crime--all on the ground that marriage and procreation are private, not public affairs. The court has held that the same right to privacy entitles a grandmother to live with her grandchildren, even if her neighbors disapprove. And most controversially, the court has held that the right to privacy protects a woman's choice to have an abortion.

But Judge Bork says that the right to privacy is nowhere in the Constitution, and therefore that all those Supreme Court decisions were wrong. He suggests that as to matters of sex, family and procreation, the court must stand on the sidelines and "let the majority have its way."

Our Constitution, however, gives no such license to moral majorities. Rather it places basic freedoms beyond the reach of majority will. The Bill of Rights, for example, protects our ideas, our consciences and our homes. The 14th Amendment places limits on the power of government to deprive us of fundamental liberty. And the Ninth Amendment says that we retain fundamental rights not expressly listed in the Constitution's text.

Previous justices of the court, liberal and conservative alike, have read these guarantees broadly to embrace the right to privacy, reminding us that our freedoms cannot be "reduced to any formula" or "determined by reference to any code."

Bork, by contrast, believes that the court should read our freedoms more narrowly and literally. If there is nothing about "sexual gratification" in the words of the Constitution, then our constitutional liberty must stop at the bedroom door. And if the records of the Constitutional Convention contain no discussion of pregnancy, then our access to condoms, diaphragms, birth control pills and safe legal abortions cannot be protected by the courts.

This view is puzzling, since Bork has written that he is a moral skeptic--that is, he believes that nobody's values are objectively better than anybody else's. If he takes that view, why doesn't he believe that each of us should be left alone to make our own decisions about our sex, love and family lives, so long as we hurt no one else? And why doesn't he want the courts to protect that private sphere from intrusion by moral majorities?

The answer could be, first, that Bork trusts majorities not to trammel important freedoms. But the powerless, the outnumbered and the unorthodox cannot share such faith. It is precisely because majorities are not always enlightened that we have a Bill of Rights to protect us against their darker impulses.

The answer might be, second, that Bork distrusts courts, fearing that they will substitute their value preferences for those of the majority. But when the court upholds the right to privacy, it is not just imposing its own values on society. Rather the court is saying that whether it likes your sexual, familial or reproductive choices or not, they are yours and yours alone to make.

Perhaps, finally, Bork simply reveres history and believes that when the framers said "liberty," they weren't thinking about sex. But the Constitution speaks in broad and majestic terms for a reason: so that it can be a living thing, evolving over time.

No less a figure than Thomas Jefferson lashed out toward the end of his life at those who "look at constitutions with sanctimonious reverence, and deem them like the Ark of the Covenant, too sacred to be touched." Those justices who elaborated the right of privacy were simply taking Jefferson at his word.

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