How conservatives adopt progressive priorities in constitutional interpretation

This example might appear extreme. But it is what Bork endorsed. In a democracy, he argued, the majority has a boundless power to outlaw whatever conduct it finds objectionable, including conduct that takes place in private, harms nobody, and is not witnessed or overheard by anyone else. This is because all law is simply the enforcement of the majority’s subjective and irrational prejudices. Just knowing that some activity is taking place and being “outraged” by it entitles the majority to proscribe that activity. Presumably, this would even include criminalizing private religious beliefs—because “[a] change in the moral environment…may surely be felt to be as harmful as the possibility of physical violence.” But it certainly would include rape, because laws relating to rape are also based on irrational emotional impulses: “[t]here is, indeed, no objection to forcible rape in the home…except a moral objection,” and morality has “no objective or intrinsic validity.”

Thus while Bork claimed to recognize a “moral distinction between forcible rape and consenting sexual activity between adults,” such a distinction was only his personal idiosyncrasy. There is “no objectively ‘correct’ hierarchy” of ethical values, and therefore “no way to decide” whether “sexual gratification [is] more worthy than moral gratification.” So we must “put such issues to a vote,” and “the majority morality prevails.” That, of course, means that a woman’s right not to be raped is only a subjective preference—and one the majority may override at will.

So, notwithstanding Bork’s belief that there is a difference between rape and consensual sex, “the subject for discussion is not my morality…. If a majority of my fellow citizens decide that [rape and consensual sex], while not alike, are nevertheless similar enough so that both actions should be made criminal,” then one must comply with that decision regardless of one’s own opinion; “while I may disagree…it is in the polling booth that my moral views count.” Obviously it would follow from the same premises that the majority may also permit rape by revoking a woman’s rights/privileges. Women would then need to resort to the ballot box to request that protection—assuming the majority sees fit to give them the right/privilege to vote.

We see here the horrifying consequences that follow from the notion that rights are benefits created by the state.