...I also think that Bork was an unsuitable nominee who deserved to be rejected. And I say this as someone who is, in fact, more of an originalist than Bork, whose originalism was of a rather dubious and frequently uninformed nature. This is given away in a passage of [Journal writer] McDowell's, where he writes:I'm not a big fan of the Ole Perfesser, but I think that was well-said.In his sober constitutional jurisprudence there was no room for any airy talk about a general right of privacy, allegedly unwritten constitutions, vague notions of unenumerated rights, or what the progressive Justice Black once derided as "any mysterious and uncertain natural law concept." For Mr. Bork, the framers said what they meant, and meant what they said.Well, actually, here's what the Framers said about unenumerated rights:The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.Denying and disparaging is pretty much what Bork did, especially with his famous characterization of the ninth amendment as an "inkblot."
In case you think Bork might have mellowed over the years, here's something he wrote in 2005:
Contrast Tocqueville with Justices Harry Blackmun and Anthony Kennedy. Justice Blackmun wanted to create a constitutional right to homosexual sodomy because of the asserted " 'moral fact' that a person belongs to himself and not others nor to society as a whole." Justice Kennedy, writing for six justices, did invent that right, declaring that "at the heart of [constitutional] liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." Neither of these vaporings has the remotest basis in the actual Constitution, and neither has any definable meaning other than that a common morality may not be sustained by law if a majority of justices prefer that each individual follow his own desires.In the words of another commentator whom I have quoted with approval but infrequently: Ngnnngnnyahh. Remind me to buy Ted Kennedy a drink.