I keep losing track of this response I wrote in 2005 to an article by George Neumayr in The American Spectator. So I’m going to post it up here as a way to keep it current and at hand.:
Re: George Neumayr’s The Law of Lawlessness:
George Neumayr hits nicely on the essential cart-before-horse nature of stare decisis, wherein the written Constitution is trumped by, for instance, a certain 1973 opinion by Justice Blackmun.
But Neumayr and other conservatives would do well to overturn another misconceived judicial stratagem: the decidedly non-originalist legal positivism of Judge Bork. Alexander Hamilton, one of the chief architects of the Constitution, argued against the inclusion of a Bill of Rights because by enumerating certain rights it would be implied that these were the only rights that the people could justly claim. Hamilton’s concern was addressed, in the Bill of Rights itself, by the Ninth Amendment, which is anathema to un-originalist originalists.
In short, conservatives who want to eschew a real analysis of rights as natural elements of natural law, will continue to attempt to force Americans to believe what for Americans is unbelievable, that there is no such thing as a right to privacy, when the law written in their hearts tells them that there most certainly is. So, for instance, having the shrill Ann Coulter blasting out from her sound truck that the right to privacy is non-existent is a contradiction of the American moral character itself. It would be far more true to the text of the Constitution to render an effective analysis of what rights are generally (claims that are just) and what the right to privacy is specifically (a just claim to a zone of personal being and action that first and foremost excludes the state). From there it would be far easier to say what the zone of privacy cannot include — such actions as killing one’s children, whether they are born or unborn, for instance.
But you cannot tell Americans that their immediate and just claim to privacy does not exist. They know that it does. And a close inspection of the Constitution’s text will also reveal that it is not merely a document of positive law, but is rooted in the just claims of natural rights and natural law, which are the inviolable underlying tenets of its very lawfulness.
Hence the absurdity of the positivist claim by Bork and others that overturning the anathema of Roe should merely throw the question of killing the unborn back to state legislatures. No legislature has any authentic power to allow the taking of any life without a profoundly just cause, such as saving the life of a mother. If any legislature had such an authentic power, then it has the power to force all sorts of violations of unenumerated rights and natural law down the throats of Americans.
So I urge fellow conservatives to overturn Borkian positivism in contemplation of overturning Roe, and to clarify what rights are, what the right to privacy is, and that the Constitution does not stand on its own ground but on the ground of natural rights and natural law. To disregard or fear this ground is to disregard or fear who we really are as Americans and to pretend that the Constitution is not cognizant of its own foundation when it clearly is.
I regret the swipe I take at Coulter. My patience had worn thin with fellow conservatives on this issue and she had probably been the last one I heard talking about it before I wrote that.