Senator, I just do not believe that anything that I

have read by Judge Bork has ever said that the 14th amendment

does not apply to women.

I...

I think the poll tax that he was talking about was a

dollar and a half, which I do not think is a crushing burden in any

income bracket.

There...

NO.

A dollar and a half? No.

If you start getting into larger numbers, then of

course we start having some problems.

I would really have to see the context, Senator, because

I have seen so many things out of so many contexts

Well, he says that if you are talking about having

different drinking ages for young men and young women, that has

violated the equal protection...

Only in the sense that in some of the cases in which

these things are extended to women—you cannot do it mechanically.

You cannot mechanically...

If that was all he said—this is the only thing I had

to go by on a program—I do not think I would give it very much

weight.

I would not give it very much weight, because, in

other words, if he said in a law journal article, saying why he

thought women were not...

Has he ever ruled, as a judge, that women simply

do not have protection under the 14th amendment? I would think

that would be headline news.

Well, no, he is talking about extensions of the law.

Well, it depends on what you mean by the "further

extension of a principle." I do not think, for one minute, that he

would accept a law...

NO, no.

Well, you know, I think we are doing exactly the

thing that I said should not be done, and that is we are looking at

it issue by issue....

I do not think that you determine it, even when you

do look at issues. That you look at the issues which were important

as of the time that...

Oh, but Senator, you cannot possibly look at future

issues, which are the only issues he can ever vote on.

Oh, but the past consists not only of different opinions,

it consists of completely different issues that he is likely to

face in the future....

I am only saying that the cases of one era are not

the cases of a previous era. That is all I am saying. I am also

saying the principles,...

No legitimate reason.

Absolutely.

None, Senator.

Absolutely.

I cannot quite sort all those out. I heard a lot, and I

read a lot about his views on free speech.

I do not know. He sounded more moderate here

than he did there, but, on the other hand, Senator, if I went back

to stuff that I wrote in...

NO, because that was a shift on where you are drawing

the line on a particular issue. It was not a shift of legal principles.

Everybody...

Not when they are 16 years apart.

I have not read the more recent one.

I do not believe that judicial activism has been beneficial

to minorities.

Yes. I had not heard that explanation before, and it

does make sense.

Yes.

Not at all. Not at all.

I not only accept that explanation, but I am even

more impressed by what he has done, because "by their fruits you

shall know them, and...

I believe that as well.

On net balance.

Senator, if the Supreme Court struck it down, it

would have been struck down no matter what reason they used for

striking it down.

Oh, no, Senator, because as long as the judiciary

has been acting, every judge, including Judge Bork, would have to

be a judicial activist....

Yes.

Senator, if every time a court acts you call it judicial

activism, then every single judge must be a judicial activist,

and the term would...

Again, it depends on what you are defining. It is

like these definitions of

I am unaware of that particular statement out of

his voluminous writings.

Well, Senator, we have discussed that twice, and apparently

it does apply to women.

NO, I was saying I knew of no cases on the court of

appeals in which Judge Bork had said that it does not apply to

women.

NO, Senator.

Senator, if there were certain words that were put

together in a certain way, that means nothing. What really matters

is what did he say...

Well, I have read his writings on antitrust for a

very long time.

I have read him on freedom of speech. I read the

Indiana law article. I have read some things

Well, Senator, one of the things I know is that long

before these hearings, the Indiana Law Review article was brought

up at a meeting of...

Well, Senator, I stand by what I wrote in 1972.

Senator, I stand by what I said in 1972 as a matter

of general principle, but there are many sentences, and whole paragraphs

that I would...

In the same sense in which I stood by my 1972 book.

Sure, Senator, but I would say that, too.

Well, the argument that Senator Hatch has just

made is if you are talking about persons, that is one thing, and if

you are talking about...

Sowell, just like Lowell.

Oh, I am an economist by trade, but I have wandered

into other fields.

NO, no. In economics.

In economics.

Not really, because, again, if you are talking about

specific issues, it is always a question of how far you carry some

principle, and he...

NO, Senator.

NO, no. What I said was that I thought that the desegregation

not only should have taken place, it should have taken

place a lot earlier,...

Oh, I am not saying that at all. That is the problem

with pat phrases like "judicial activism" because everybody means

something different...

NO, no. I am saying that by using the kind of reasoning

they did, drawing upon principles not in any written document

anywhere, any legal...

Well, I know no one who has even claimed that

there has been any discernible change in the pattern of discrimination

brought about by either...

I am saying of that era. Now, over a long 30-year

period, with lots of economic changes, then you may have some

gradual changes. But even...

Yes.

I think that is very safe, Senator.

Harvard, Columbia, and the University of Chicago.

That is right.

Yes.

Yes, yes, I was. I was a Marxist.

SO I have great sympathy with people who have

changed their views over the years. [Laughter.]

Yes.

I would think not, Senator.

Oh, it certainly would.

I would think not.

Well, I do not know if I would characterize it that

way or not, but it certainly would not be desirable.

Yes. The other thing, too, is if you look at history—

and again, I think that is appropriate where you are talking about

something like...

From the time of the Dred Scott decision until

Plessy v. Ferguson was a longer period of time than from the time

that Earl Warren came on...

And during that period, the courts were the lagging

element, and it was the President and then the Congress that protected

blacks.

No, I do not. I do nc t know what all their reasons

are. One of the sad things that happens with any organization over

a period of time...