Nat Hentoff's recent column, with its highly prejudicial innuendo against Judge Robert Bork {op-ed, July 19}, was so devoid of legal basis I feel compelled to set the record straight.

For example, Hentoff cleverly implies that the "exclusionary rule" is embedded in the Bill of Rights, although he thinly covers himself by stating that it is "based on the most specific, detailed section of the Bill of Rights, the Fourth Amendment" (emphasis added). The exclusionary rule, however important or sacred it may be to Hentoff, legally is solely a rule of evidence promulgated by the Supreme Court. Should that court decide to narrow, modify or even revoke the rule, such action would not violate the Fourth Amendment or any other section of the Bill of Rights. Today the rule is undoubtedly the No. 1 loophole that permits criminals to "go free to prey upon the public."

Incidentally, it should be noted that this rule against admission of tainted evidence permitted a big exception for many decades after the 1912 opinion of Justice Brandeis, which was partly quoted by Hentoff. Evidence illegally obtained by state authorities could be introduced into the federal courts provided the tainted evidence was handed to the federal authorities "on a silver platter." Obviously, there was and is no constitutional issue.

In the first part of the article, Hentoff alleges that Bork, to a remarkable extent, would unbalance the Constitution because of his often stated belief "that judges, whenever possible, must defer to legislatures as the direct instrumentality of the people. Judges, after all, are unaccountable and come from a much narrower spectrum than the populace at large." Hentoff defines such views as "majoritarianism" and denounces it as an unacceptable legal philosophy that must be avoided at all costs.

Assuming Hentoff accurately paraphrased Bork, the key words are "whenever possible," translated by any fair-minded person to mean "whenever constitutional." In other words, Hentoff is upset because, so long as the legislative enactment is considered constitutional, Bork will not conjure up some nonexistent, novel constitutional right or theory in order to strike it down and impose his personal views. Bork, in effect, is saying that the legislature has a right to be "wrong" so long as its enactment does not violate the Bill of Rights or any other section of the Constitution.

Hentoff even calls on James Madison in his effort to sink this vicious legal theory, "majoritarianism." He alleges that Madison considered this theory "a clear and ever present peril to the future of the Republic." In a fallacious attempt to prove his point, he quotes Madison as follows: "Wherever the real power in a Government lies, there is the danger of oppression. In our Government, the real power lies in the majority of the community." Hentoff claims that is why Madison then added that the courts were intended to be an "impenetrable bulwark against every assumption of power in the legislative branches" that encroaches upon the rights of the people.

Obviously, any assumption of power that encroaches upon the rights of the people, i.e., the Bill of Rights, is unconstitutional. Surely Bork as well as all citizens agree that the Supreme Court has a duty to strike down unconstitutional assumptions of power by the legislative branches. That's all Madison said. Hentoff's quotations provide no proof whatever for his proposition that "majoritarianism" is evil per se.

What in the world is wrong with majority rule so long as it does not violate the Bill of Rights? Isn't that our form of government? Or do we want judges to conjure up out of thin air rights not delineated in the Constitution or, conversely, to subtract from those rights that are clearly delineated on some specious legal theory that the language does not really mean what it says? The Constitution provides ample methods and procedures for amendments.

Hentoff further states that Bork disqualified himself when, in an interview, he made it clear that he would have dissented from Justice Harlan's First Amendment opinion in the 1971 case of Cohen v. California. "Cohen, an opponent of the Vietnam War," writes Hentoff, "had greatly offended many people in the Los Angeles County Courthouse by wearing a jacket which advised that a carnal act be performed on the military draft." Hentoff labels Harlan as a "conservative" but not an evil "majoritarian." He quotes Harlan as declaring "that the decision of what to say in public is placed by the Constitution largely in the hands of each of us -- not in the hands of the Government through the majority will" (emphasis added).

Chief Justice Holmes, in a famous First Amendment case, pointed out that there were limitations. For example, he said that one cannot falsely yell "fire" in a crowded theater. Note the word "largely" used by Harlan. He obviously recognized that the right was not absolute. Hentoff would deny Bork a seat on the Supreme Court for stating that he would have dissented from the opinion delivered by Harlan, even though the precedent had been set that First Amendment rights were not absolute. That sounds like an arbitrary litmus test as well as contempt of dissent with which Hentoff does not agree.

Hentoff quotes from a speech by New York Chief Judge Sol Wachtler criticizing Bork as follows: "There is a place for judicial restraint. . . . But the protection of . . . individual . . . freedoms is a uniquely judicial obligation and responsibility." What is Wachtler trying to say? Why not be specific? What innuendo!

Individual freedoms are clearly spelled out in the first 10 amendments to the Constitution, known to us as the Bill of Rights. Has anyone ever accused Bork of failure in his judicial obligation and responsibility to protect the individual freedoms guaranteed all of us by the Bill of Rights? Or do Hentoff and Wachtler prefer Supreme Court justices who will invent rights that don't exist in the Bill of Rights? It is clear that they are using innuendo and vagueness as a shield to imply that there is no place for judicial restraint in interpreting the Bill of Rights. If they want the Supreme Court to expand the Bill of Rights without restraint or constitutional amendment, why not demonstrate some courage and advocate such a philosophy?

The writer, a retired naval officer, is a member of the D.C. Bar.