Original intent and Connecticut

NO average American like me can possibly be expected to keep track of the latest twists and turns in the Judge Robert Bork saga. Is he a conservative or a flaming moderate? Does he respect precedent or doesn't he? What was our Founding Fathers' ``original intention'' on condoms in Connecticut? How come a man as brilliant as Judge Bork didn't pay $1,316.09 in overdue taxes to the fair city of New Haven until after he was nominated to the Supreme Court?

This is not an easy time for us average Americans. Only a handful of us can name all Seven Dwarfs and the present lineup of the highest court in the land. Yet we are being asked to evaluate whether Mr. Bork is another Lewis Powell or a conservative version of Abe Fortas. Another Warren Burger or Felix Frankfurter. An Enchilada or possibly Grumpy, after five grueling days of testimony before the Senate Judiciary Committee.

I can't believe the authors of the Constitution really intended such matters to be so dad-burned complicated. A story in the Sept. 17 New York Times referred to the nominee's responses to questions as ``direct, patient, closely reasoned, highly nuanced and sometimes humorous.'' If you ask 10 Americans to define ``highly nuanced,'' six are likely to opine, ``Isn't he the leader of Ethiopia?'' (The newspaper also does not make it clear whether Bork's humorous replies were intentionally so.)

But let's get back to ``highly nuanced.'' Is our beloved United States Constitution so unclear that a prospective Supreme Court member must resort to nuancing in public? Besides, I had been led to believe Bork's judicial philosophy was straightforwardly uncomplicated: Read the Great Document itself, add a pinch of its authors' ``original intentions'' (determined by decades of scholarship or, if that is inconclusive, by sheer whimsy), and voil`a: no contraceptives in Connecticut.

I took the highly unusual step of reading the Constitution (only 1 in 10 Americans would prefer to do this over watching reruns of ``Gilligan's Island''). I assumed it would be chock full of nuances. None were to be found. Nor do any references to family planning appear anywhere in the text. (It is worth noting that our Founding Fathers chose to spell ``choose'' as ``chuse,'' a clear precedent, any reasonable person would have to conclude, for cacography.)

The omission of birth control is significant, because Bork has repeatedly voiced criticism of a 1965 Supreme Court ruling (7-2) that struck down a Connecticut law banning contraceptives, even if used by happily married Nutmeg couples. I did, however, find several articles in the Constitution which bear on the disputed case. The Fourth Amendment: ``The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.'' And the Ninth: ``The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.''

Now, it seems to me, to arrest a happily married Connecticut couple illegally using a contraceptive in the privacy of their bedroom, the police, presumably in hot pursuit or perhaps on a tip, would have to conduct a highly ``unreasonable search.''

I'm no legal scholar, but clearly Bork's reasoning on this 1965 ruling means he shouldn't make the cut for the Supreme Court nine. He should stay where he is now - in the minors, somewhere deep in left field.

Furthermore, Bork's condom conundrum, when coupled with his apparent original intention not to pay taxes owed to New Haven, suggests another criticism. Could it be he is not simply insensitive to minorities and women but also to Connecticut? - which, by the by, is known as the Constitution State.

David Holahan is a free-lance writer.

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