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LIBERTY: Rights & Tolerance | September 2, 1987


An Unpublished Letter to Los Angeles Times

Professing "judicial restraint", Supreme Court nominee Robert Bork insists that the "original intent" of the Founding Fathers was to recognized no rights but those spelled-out in the Constitution, or its amendments: Bork is, thus, constitutionally unqualified for the Supreme Court. He is in direct opposition to the Ninth Amendment, in the Bill of Rights: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." Rights such as those to privacy, equal pay for equal work, and the pursuit of happiness -- although not listed in the Constitution -- can still be judged to have legal legitimacy, Bork et al. notwithstanding.

Justice must not be taken hostage by a radical minority any more than it should be abused by an unjust majority (as prompted civil rights cases). If a swing-vote Supreme Court justice will not recognize many of our rights -- which are inalienable, not "invented" -- then any reactionary nut group, no matter how small, with enough money to hire a clever lawyer can successfully challenge laws needed for the progress of all the rest of us.

If there's a new Constitutional convention or amendment, consider this: To keep the Supreme Court well insulated from temporarily mistaken public opinions but also to keep it constantly in tune with the long-term will of the people, let's set-up the justices' terms on a rotating, orderly basis (unlike the current, haphazard system) -- each of the nine judges would get a nine-year term, and (barring deaths or early retirements) each year a new appointee would replace a retiring justice.

All in all, let none of us think ourselves invulnerable to injustice; and let us all remember the original intent of the rule of law, proclaimed 37 centuries ago by Hammurabi: "That the strong might not oppress the weak..."

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