The Corner

Kidney Takings

From a reader:

I’ll stand with Robert Bork on this:

“Once, after I had given a talk on the Constitution at a law school, a

student approached and asked whether I thought the Constitution

prevented a state from abolishing marriage. I said no, the Constitution

assumed that the American people were not about to engage in despotic

insanities and did not bother to protect against every imaginable

instance of them. He replied that he could not accept a constitutional

theory that did not prevent the criminalization of marriage. It would

have been proper to respond that in any society that had reached such a

degenerate state of totalitarianism, one which the Cambodian Khmer Rouge

would find admirable, it would hardly matter what constitutional theory

one held; the Constitution would have long since been swept aside and

the Justices consigned to reeducation camps, if not worse. The actual

constitution does not prevent every ghastly hypothetical law, and once

you begin to invent doctrine that does, you will create an unconfinable

judicial power.”

The Tempting of America by Robert Bork, Free Press, January 1, 1997, p.

237.

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