In an exclusive Newsmax interview Tuesday, esteemed constitutional scholar Judge Robert Bork, whose nomination to the Supreme Court by President Ronald Reagan was derailed by Senate Democrats in 1987, warned that U.S. federal judges might follow this week's court ruling in Canada and concoct an unwritten right to practice prostitution within the U.S. Constitution.
"I have no doubt that federal judges in the United States may one day define prostitution as a constitutional right," said Judge Bork, now a distinguished fellow at the Hudson Institute and a professor at the Ave Maria School of Law in Ann Arbor, Michigan.
"It depends on the elite class's opinion," he told Newsmax. If the American elite would prefer prostitution to be decriminalized nationally, federal judges will go along "even if the majority of the people are against it, and even though there is nothing in the Constitution about it."
Bork added that "same-sex marriage, after all, which we're getting slowly through court rulings, is unpopular with the population and is not to be found anywhere in the Constitution, yet the courts plunge on."
In a landmark decision, a Toronto judge on Tuesday struck down a series of prostitution laws on the books in Canada, arguing that they violated the "right to security of the person as protected under the Canadian Charter of Rights and Freedoms." The ruling could lead to legalized brothels north of the border.
A solicitor general of the United States during the Nixon Administration and a former Yale law professor, Judge Bork sees similarities between the possibility of "constitutionally-protected prostitution" by judicial edict and the Roe v. Wade decision that legalized abortion in all 50 states in 1973.
Legal abortion as imposed by Roe is "not in the Constitution," Bork noted, "yet we can't get it overturned" because of the current composition of the Supreme Court. Could legal prostitution in all 50 states be forced upon Americans by the courts as a constitutional right?
A number of Supreme Court justices have looked to foreign law as a guide in recent years, and prostitution is already legal in much of the industrialized world. It is legal and regulated in eight countries in Europe, for example,
including Germany and Switzerland. In others such as France, Spain, and Britain, prostitution is legal, but not activities associated with it, like public solicitation.
The sex trade is also legal and regulated in Mexico, Columbia, Peru, and Bolivia, and legally tolerated in almost all of the rest of South America.
Some on the right in the U.S. want prostitution legalized in the name of liberty. Fox Business Network's John Stossel earlier this year wrote, "Former prosecutor Wendy Murphy says prostitution is 'sexual slavery.' I think calling it slavery is an insult to those who've suffered real slavery. Slavery is force. Prostitution is consensual."
Last year, the libertarian Reason.com website's editor-in-chief Nick Gillespie, in calling for the legalization and taxation of prostitution, suggested that "turning America into a Sin City on a Hill could help President Obama pay for his ambitious plans to overhaul health care, invest in green energy, and create gee-whiz trains that whisk 'through towns at speeds over 100 miles an hour.'"
"Manhattan Madam" Kristen Davis, who claims disgraced former New York
state Democratic Gov. Eliot Spitzer as an ex-client, is even running a libertarian campaign for Spitzer's old job this year on the "Anti-Prohibition Party" ticket, under the direction of flamboyant Republican political consultant Roger Stone.
Judicial activism may now be practiced by liberal federal justices and judges, but originalists like Bork see it having plagued the country in cases ranging from the 1857 Dred Scott ruling in favor of slavery to last month's Ninth Circuit decision against California's law prohibiting same-sex marriage.
Bork in his 1990 book "The Tempting of America," wrote that "the habit
of legislating policy from the bench, once acquired, is addictive and hence by no means confined to constitutional cases." He warned that an activist judge "can no more restrain himself from doing 'good' in construing a statute than when he purports to speak with the voice of the Constitution."
In his 1996 book documenting liberalism's role in the moral decline of
America and Western civilization, "Slouching Toward Gomorrah," Judge
Bork warned, "it is now clear that it is the courts that threaten our liberty - the liberty to govern ourselves," adding that "the democratic nation is helpless before an antidemocratic, indeed a despotic, judiciary."
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