A dangerous, cramped, narrow view of the right of privacy?

Noting the belief that Robert Bork was defeated because he disaffirmed the right of privacy, Adam Liptak tries to discern what Supreme Court nominee John Roberts thinks on the subject.

He quotes an article Roberts drafted in 1981 for Attorney William French Smith:

"All of us, for example," he wrote, "may heartily endorse a 'right to privacy.' That does not, however, mean that courts should discern such an abstraction in the Constitution, arbitrarily elevate it over other constitutional rights and powers by attaching the label 'fundamental,' and then resort to it as, in the words of one of Justice Black's dissents, 'a loose, flexible, uncontrolled standard for holding laws unconstitutional.' "

Liptak then quotes Harvard lawprof Larry Tribe:

Laurence H. Tribe, a law professor at Harvard, said the views expressed in Judge Roberts's draft article were at the time "still at least marginally defensible although, by my lights, misguided even then."

This was no longer the case, Professor Tribe said, after Judge Bork's nomination was defeated, an action that he and many other liberal law professors supported. "It was not until the mid-1980's," Professor Tribe said, "that intervening developments could be said to have exposed such views as resting on so cramped and narrow a concept of liberty that any nominee committed to a project of restoring them to the law posed a danger to the American Constitution."

"Still ... even then"? You don't get much clearer markers of a belief in an evolving Constitution. And what are the "intervening developments" that "exposed" the dangerous narrowness of the view expressed in the Roberts' draft? The Bork hearings?

Actually, the Roberts' quote doesn't clearly disavow the right of privacy. It's certainly nothing like the flat ridicule Bork aimed straight at the right. The quote is fussing over "an abstraction" that becomes too free-wheeling and gets elevated over other rights that also require attention. It looks to me that all Roberts is saying is that we need to be careful articulating the right of privacy. Ironically, he simultaneously frets about imprecise interpretation and fails to tell us exactly what he has in mind.

I'd advise you to watch out for that sort of thing.

And watch out for statements like Tribe's too. He's spouting generic verbiage that mostly means: liberals expanded constitutional rights to a point that is good, and if anyone tries to touch them we're going to slam you.