Word: intentions
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According to Judge Bork and the administration which nominated him, judges should heed the original intent of the Founders of the Constitution and should "find" rather than "make" law. Rights not specifically enumerated in the text of the Constitution or the Bill of Rights, they argue, were not intended by the Founders and therefore do not exist; only the rights they mentioned really count. A good judge, consequently, must resist the temptation to create new ones...
...Public Accommodations Bill, a forerunner of the Civil Rights Acts, as an "intellectual mistake" commited when he was under the sway of hard-core libertarianism. While Bork has corrected this flaw in his thinking, he has relaced it with a dogmatic faith in "the jurisprudence of Original Intent." This theory would bind America to the specific 18th Century values (allegedly) held by specific 18th Century gentleman. Lost in Bork's theoretical shuffle would be the broad guarantees the Framers actually bothered to write into the Constitution and the Bill of Rights...
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...
...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...
...rebuttal joined by his then colleague Antonin Scalia), Bork wrote that a "remarkable upsurge" in libel suits and damage awards "has threatened to impose a self-censorship on the press" as effective as government censorship. Because the core value of a free press is clearly part of the original intent of the First Amendment, he argues, judges in this instance can play an activist role -- though he rarely advocates that role in most matters pertaining to the core value of racial equality...