Abstract
Ever since Justice Goldberg's concurring opinion in Griswold v. Connecticut, the Ninth Amendment has been a flashpoint in debates over the merits of originalism as an interpretive theory. Judge Bork's comparison of interpreting the Ninth Amendment to reading a text obscured by an inkblot has been particularly subjected to intense criticism. The metaphor has been attacked as erasing the Ninth Amendment from the Constitution, and as representing the inevitably selective and inconsistent use of
text and history by so-called originalists.
It turns out, however, that not only was Judge Bork right to reject Justice Goldberg's reading of the Ninth Amendment, his inkblot metaphor illustrates precisely the approach that a principled originalist must take in the face of historical silence or ambiguity. The more historical evidence that comes to light regarding the Ninth Amendment, the more Judge Bork's original instincts have been vindicated.
Document Type
Article
Publication Date
2008
Recommended Citation
Kurt T. Lash, Of Inkblots and Originalism: Historical Ambiguity and the Case of the Ninth Amendment, 31 Harv. J.L. & Pub. Pol'y 467 (2008).