So are there things in the Constitution you find stupid? I remember Judge Bork saying that there were few people who understood what the Ninth Amendment meant, as if it was partially covered by an inkblot.
You know, in the early years, the Bill of Rights referred to the first eight amendments. They didn’t even count the ninth. The Court didn’t use it for 200 years. If I’d been required to identify the Ninth Amendment when I was in law school or in the early years of my practice, and if my life depended on it, I couldn’t tell you what the Ninth Amendment was.
Do you think there are flaws in the Constitution?
The one provision that I would amend is the amendment provision. And that was not originally a flaw. But the country has changed so much. With the divergence in size between California and Rhode Island—I figured it out once, I think if you picked the smallest number necessary for a majority in the least populous states, something like less than 2 percent of the population can prevent a constitutional amendment. But other than that, some things have not worked out the way the framers anticipated. But that’s been the fault of the courts, not the fault of the draftsmen.
What about sex discrimination? Do you think the Fourteenth Amendment covers it?
Of course it covers it! No, you can’t treat women differently, give them higher criminal sentences. Of course not.