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22. NYT Letter re Bork 1992

FYI
THE NEW YORK TIMES EDITORIALS/LETTERS FRIDAY, JULY 17, 1992

Court Again Upholds Rights of the Individual

To the Editor:

In "Again, a Struggle for the Soul of the Court" (Op-Ed, July 8), Robert H. Bork has presented a carefully contrived argument that the Supreme Court has "usurped" the democratic prerogatives of the people and their elected representatives in Planned Parenthood v. Casey, on abortion, and in Lee v. Weisman, on school prayer. He suggests that the Court has misread both the Constitution and our history, and “trespassed upon the rights of democratic majorities."

It is Mr. Bork, however, who has ignored the very essence of the American constitutional principle, that there are some human rights so fundamental that they are put even above majority rule.

The framers of the Constitution were only too aware of the dangers of mob rule and majorities that might be assembled in passion. They had seen how quickly the elected representatives of the Massachusetts Bay Colony - established to find religious freedom - turned to an orthodoxy that severely punished all dissent. Their fears were borne out by the excesses of the French Revolution. The framers recognized that popular majorities cannot be altogether relied on to protect our freedoms.

The essence of the Bill of Rights is that no simple majority is allowed to take away fundamental individual rights, such as freedom of speech, of religion, freedom from unreasonable searches and seizures, and the right to a fair judicial process.

Roe and Weisman simply recognize that a woman's right to decide to terminate a pregnancy and a student's right to a spiritual outlook uncolored by official pressures are outside the purview of majority whims. What Mr. Bork decries as the Court's "radicalism" is the Court's faithfulness in prohibiting government by unrestrained majoritarianism. His tortured position that the Court should defer to elected representatives is the most radical attack since Robespierre on reserved rights of citizens and limitations of majority rule.

It is, indeed, a peculiarly inconsistent argument that the Reagan-Bush­Bork forces aver: That the regulations of "big" government are evil and a burden on the rights of the people to make a dollar and, at the same time, that government regulations and prohibitions are essential to the public welfare and heaven blessed if directed toward controlling sexual and reproductive behavior.

Rather than ".taking the abortion issue from the people," the Court has affirmed the people's right to live as each believes moral and best. Mr. Bork's quarrel with the Court and his masquerade as a strict constructionist represent less legal scholarship and more .a mischievous attempt to cloak his fervent hopes that an absolutist majority can be formed for his visceral prejudices.

Regarding the Weisman case, there are few clearer ideas in the Constitution than that governments·”shall make no law respecting an establishment of religion." If Mr. Bork were genuinely enamored of historical precedence, he might have recalled that in the days before the self-appointed censor Anthony Comstock (1844-1915) there were no laws restricting abortion in the United States.

ELLERY SCHEMPP
Watertown, Mass., July 9, 1992