Word: bork
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...restraint," the idea that judges should defer to legislative and Executive decisions. Unless a clear constitutional right is violated, he believes, the majority through its elected officials may impose its will on the minority, even if judges consider the resulting laws to be insidious or unwise. For example, though Bork has argued that the court did not have the constitutional justification to strike down the anticontraceptive law in the Griswold case, he has spoken disparagingly of the statute itself. "Even if we assume that courts have superior capacities for dealing with matters of principle," he writes, "it does not follow...
From that premise flows Bork's belief that constitutional questions should be decided on the basis of the "original intent" of the framers. Judges should avoid creating new rights or notions, like "privacy" or "fairness," that the framers did not deposit there. Yet the Founding Fathers foresaw the possibility that the Bill of Rights might leave the impression that citizens possessed only those liberties specifically mentioned there. For that reason they provided a catchall in the Ninth Amendment: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Neglected...
...Bork has acknowledged that the precise (and sometimes imprecise) language of the Constitution cannot always be treated as the last word on its meaning. New conditions arise that may require the application of constitutional principles in ways the framers did not foresee. But he insists that the role of judges is to identify the "core values" that are contained in the text and history of specific constitutional provisions, and then to apply these as present-day situations warrant...
That is not very different from the method of more wide-ranging judges and scholars. Where Bork and his critics diverge sharply is on the question of how broadly to define those values and what measures the court may employ to implement them. Bork's views on some major questions of constitutional interpretation...
...14th & Amendment. Though drafted in the post-Civil War era chiefly to ensure just treatment for blacks, it extends its guarantees of due process and equal protection under the law to "any person," allowing the court to invoke it to cover women, aliens, illegitimate children and sometimes the poor. Bork defends the landmark Brown v. Board of Education school desegregation case on the ground that the intent of the 14th Amendment contains the "core" idea of protecting blacks from government discrimination. But he finds no similar intent to protect women. That could exclude them, for example, from affirmative action programs...