Ninth Amendment (Update)

• Author: Randy E. Barnett
• Pages: 1813-1815

Page 1813

The Supreme Court's reliance on the Ninth Amendment to justify a constitutional RIGHT OF PRIVACY in the landmark cases of GRISWOLD V. CONNECTICUT (1965) and ROE V. WADE (1973) ignited great interest in the long-ignored amendment. Scholars wrote a flurry of articles about it, and lower federal courts began accepting Ninth Amendment challenges to a variety of statutes. After Roe, however, the Supreme Court consistently abstained from any further use of the Ninth Amendment. Its most notable rejection came in BOWERS V. HARDWICK (1986). In Bowers, the federal court of appeals had held a statute criminalizing sodomy unconstitutional because it violated the right of privacy protected by, among other provisions, the Ninth Amendment. The Court, in a 5?4 decision, reversed. Though the Court noted that "[r]espondent does not defend the judgment below based on the Ninth Amendment, the Equal Protection Clause, or the Eighth Amendment," its refusal to extend the right of privacy grounded in the DUE PROCESS clause to this type of statute, together with its earlier refusals to rely on the Ninth Amendment, signaled that future legal challenges based on the Ninth Amendment would not likely be successful.

This is where the situation might have remained had President RONALD REAGAN not nominated appellate court judge Robert H. Bork to the Court in 1987. During his famously televised confirmation hearing, Bork was questioned by SENATE JUDICIARY COMMITTEE Chairman Joseph Biden, as well as by Senators Strom Thurmond, Ted Kennedy, and Dennis DeConcini, about whether the right of privacy was supported by the Ninth Amendment. Bork initially suggested that the rights "retained by the people" referred solely to rights mentioned in state constitutions. Later he added: "I would be delighted" to use the Ninth Amendment "if anybody showed me historical evidence" as to what the Framers meant. Then Bork offered a provocative analogy that received wide attention: "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 ink blot 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 ink blot if you cannot read it." Bork said he knew of no evidence that the Framers of the Ninth Amendment intended it to protect a "dynamic category of rights, that is, under the ninth amendment the court was free to make up more Bill of Rights."

Analogizing any part of the Constitution's text to an "ink blot"?while invoking the absence of historical inquiry?was sure to elicit an academic response. Bork's very public dialogue, followed by the SENATE'S denial of his confirmation, sparked a renewed interest in the Ninth...