Abstract
One of the more indelible moments in late twentieth century legal discourse occurred when Judge Robert Bork described the proper response of a judge confronted with the Ninth Amendment. Nominated to replace retiring Supreme Court Justice Lewis Powell, Judge Bork appeared before the Senate Judiciary Committee and declared that courts had no business enforcing the mysterious clause at all. Given the scarcity of historical evidence regarding the original meaning of the amendment, using the Ninth Amendment to strike down a law would say more about the predilections of the judge than the requirements of the text. Here is the famous exchange:
Judge Bork: I think the ninth amendment therefore may be a direct counterpart to the 10th amendment. The 10th amendment says, in effect, that if the powers are not delegated to the United States, it is reserved to the States or to the people. And I think the ninth amendment says that, like powers, the enumeration of rights shall not be construed to deny or disparage rights retained by the people in their State Constitutions. That is the best I can do with it.
Senator DeConcini: Yes. You feel that it only applies to their State constitutional rights.
Judge Bork: Senator, if anyone shows me historical evidence about what they meant, I would be delighted to do it. I just do not know.
Senator DeConcini: I do not have any historical evidence. What I want to ask you is purely hypothetical, Judge. Do you think it is unconstitutional, in your judgment, for the Supreme Court to consider a right that is not enumerated in the Constitution-
Judge Bork: Well, no.
Senator DeConcini: -to be found under article IX?
Judge Bork: ... I do not think you can use the ninth amendment unless you know something of what it means.
For example, if you had an amendment that says "Congress shall make no" and then there is an inkblot and you cannot read the rest of it and that is the only copy you have, I do not think the court can make up what might be under the inkblot if you cannot read it.
Judge Bork suspected that the Ninth Amendment ought to be read as a companion to the Tenth Amendment, with both provisions serving to protect the retained rights of the people in the states. Nevertheless, absent additional evidence, Bork believed judicial enforcement of the Ninth Amendment was inappropriate. This meant that Justices William Douglas and Arthur Goldberg erred in their respective opinions in Griswold v. Connecticut by suggesting the Ninth Amendment helped justify the Court's identification and enforcement of the right to privacy.
Document Type
Article
Publication Date
2013
Recommended Citation
Kurt T. Lash, Inkblot: The Ninth Amendment as Textual Justification for Judicial Enforcement of the Right to Privacy, 80 U. Chi. L. Rev. Dialogue 219 (2013).