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.