Of inkblots and originalism: historical ambiguity and the case of the Ninth Amendment.

• Author: Lash, Kurt T.

Ever since Justice Goldberg's concurring opinion in Griswold v. Connecticut, (1) 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 (2) has been particularly subjected to intense criticism. (3) 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. (4)

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.

1. A BRIEF INTRODUCTION TO THE MODERN PRACTICE OF ORIGINALISM

   Originalism has evolved during the last several decades. Although past formulations sometimes looked for the Founders' intent, today the more sophisticated forms of originalism seek the meaning of the text as it was likely understood by those who added the provision to the Constitution. (5)

   This emphasis on the original understanding of the ratifiers can be traced back to the Founding generation itself. James Madison, for example, expressly embraced the idea that the meaning of the Constitution should reflect the understanding of the state ratifying conventions. (6) According to Madison, the Constitution as proposed by its framers "was nothing more than the draught of a plan, nothing but a dead letter, until life and validity were breathed into it, by the voice of the people, speaking through the several state conventions." (7)

   Madison's emphasis on the ratifiers' understanding reflects the Founders' belief in popular sovereignty. A political theory in ascendancy at the time of the Founding, popular sovereignty distinguishes the government from the governed, with only the latter having the sovereign right to establish (or amend) fundamental law. (8) The governed speak as "the People" when they meet in convention and debate, vote, and reduce to writing the People's fundamental law. Because these conventions of the People are responsible for "breathing life" into the document, it is their understanding of the words that controls.

2. THE NINTH AMENDMENT

   When it comes to the Ninth Amendment, the modern practice of originalism might seem problematic because, for many years, we had little information about its original...