Originally posted by sh76
Griswold, only 20 odd years old at the time, was hardly a non-controversial case. Even under a natural rights theory, it's not completely clear that there's a natural right to privacy (though I'd tend to agree that there is). If Bork believed that the Constitution did not guarantee the right to privacy, his opinion was hardly unique and was probably mainstream ...[text shortened]... ontrived.
The point is that opposing Griswold in those days was not such an extreme position.
I disagree; by 1987 Griswold
had been established law for decades. Opposition to the principles in Griswold
was as extreme as criticism of Brown v. Board of Ed
; both certainly existed, but they were far out of the mainstream.
That applies whether one accepts the result in Griswold
under 9th Amendment, "penumbras" or Due Process Clause analysis.
As John Harlan said earlier:
"(T)he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This 'liberty' is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints."
In practice, Scalia varied little from Bork, but he had the good sense not to have an extensive written body of work expounding extremist views.