The Senate Judiciary Committee has just completed a great constitutional debate on an issue as old as the republic: the role of government in the lives of individuals and the rights that individuals cede to their government. The men and women who participated -- who testified for and against the nomination of Robert H. Bork to the Supreme Court (including, of course, Judge Bork himself) -- were, with few exceptions, of the highest integrity, the sharpest intellect and the greatest learning in the law. This was a debate of consequence and caliber.
But as the Senate prepares to vote, President Reagan and Judge Bork's proponents ignore this debate. Instead, they imagine that a "lynch mob" has swayed the Senate, and public opinion too, by a campaign of lies and distortions. President Reagan is wrong. Indeed, the committee's debate on constitutional principles was far more substantive, educational and enlightening than anything we have heard from the White House on this nomination. And senators' positions have been based on the record of that debate, not on ideological histrionics from left or right.
In the stirring words of William Coleman, former secretary of transportation in the Ford administration, our debate was about whether "we are held together as a nation by a body of constitutional law constructed on the premise that individual dignity and liberty are the first principles of our society." And as former representative Barbara Jordan eloquently told the committee, our debate was about whether, in the future as in the past, "the Supreme Court will throw out a lifeline when the legislators and the governors and everybody else refuse to do so."
At the hearings, Judge Bork held firmly to his view that we possess our liberties because the Constitution names them, and that rights not named are granted or withheld at the pleasure of the government.
But a vast majority of the American people nearly 2,000 law professors (40 percent of the professors at all accredited law schools) and at least 54 senators hold the contrary view: that every citizen has inalienable rights, including the right to privacy, simply because we exist. Like the Constitution's Framers, they believe that all rights are retained by the people that are not clearly granted to the government.
"Who will be so bold as to undertake to enumerate all the rights of the people?" asked James Wilson, a leading Framer and later a justice of the Supreme Court. And when the state ratifying conventions and the people demanded a Bill of Rights, James Madison insisted on adding his Ninth Amendment, that "the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."
The Senate committee debate was also about other vital constitutional principles: how Judge Bork would apply his personal standard for the equal protection of the law to women; how broadly he would apply the Supreme Court's "clear and present danger" test for free speech when he acknowledges that he vehemently disagrees with its underlying principle; and where Judge Bork, who is personally free beyond doubt from any hint of racial or gender bias, will stand on the great future decisions of human liberty, when he has challenged the constitutional legitimacy of most of those decisions made in the past 30 years.
Perhaps there have been distortions outside the Senate debate. Any 30-second ad is almost by definition a distortion. But the excesses of the right -- the fear- and hate-laden telephone campaigns, the character assassination, the "lynch mob" charges -- have been no less strident. In any case, those who think advertising decided the issue underestimate the wisdom not only of a Senate majority but also of most of their fellow citizens.
In Judge Bork's 32 hours of forthright testimony, he was free to speak in as much or as little detail as he wished, and to answer every charge. I kept my commitment that every single witness Judge Bork requested would testify, while dozens of witnesses against the nomination were turned away. When it was over, 62 witnesses had appeared in favor of the nomination and only 48 in opposition. Throughout, Republican and Democratic committee members alike acclaimed the fairness of the hearings.
Thanks to the eye and ear of television, this fascinating constitutional debate unfolded in full view of millions of Americans, who could and did watch, listen and judge for themselves. All the money spent by all the interest groups for and against the nomination probably could not have paid for one day of the television coverage Judge Bork received in the hearings.
I believe that the vast majority of the American people agree with the Senate's expected verdict on this nomination, for the same reasons of basic constitutional principle. When the verdict of history is declared on this important struggle, all the advertising of pressure groups right and left will shrink to an appropriate degree of insignificance. That verdict will read: that in the bicentennial year of their Constitution, the Senate and the American people declared once again their insistence on the "inalienable rights" to "life, liberty and the pursuit of happiness" that motivated the Founding Fathers two centuries ago. The writer is a Democratic senator from Delaware and chairman of the Judiciary Committee.