Friday, January 11, 2013
After posting the reply I had written to Judge Bork's request for my thoughts on the meaning of the Ninth Amendment, I received a note from MoJ reader Professor Kurt Lash of the University of Illinois Law School, author of The Lost History of the Ninth Amendment (Oxford University Press, 2009). Professor Lash reports on the basis of his research that what I had inferred from the Founders' theory of government finds confirmation in the historical record. Here is his note, which I post with his kind permission:
I am a regular reader of the Mirror of Justice website and noticed your post today on the late Robert Bork and the Ninth Amendment. Having read your linked essay of reply to Judge Bork, you should be encouraged to know your reading of the Ninth Amendment is powerfully supported by the historical evidence. The founding generation understood the Ninth and Tenth Amendment as declaring and preserving the people's retained rights of local self-government. The rights would be protected in every case where federal power was properly limited, and violated every time federal power was unjustifiably expanded. Nor did this change at the time of the Fourteenth Amendment (contra Randy Barnett). In fact, this is how both amendments were broadly understood, and cited, for the next century or so. All of this evidence is laid out in my book "The Lost History of the Ninth Amendment" (Oxford Press, 2009).
I always felt that Judge Bork had been wrongly maligned for the "ink blot" statement--he was entirely right to reject the Clause as a source of federal judicial power to constrain the states. And he was right to treat the clause as unenforceable absent sufficient evidence of original meaning. Even worse, when Philip Kurland testified against Bork in part because of the judge's views on the Ninth Amendment, Kurland knew of historical evidence that supported Judge Bork's view--evidence that Kurland excluded from the Founders' Constitution (but can be found in his original files at the University of Chicago). Happily, I got to defend the Judge on this matter in person while he was still with us, as part of a conference in honor of the Judge back in 2008. See Lash, Of Inkblots and Originalism: Historical Ambiguity and the Ninth Amendment, 31 Harv.J.L. and Pub. Pol'y 467 (2008).
The Ninth is not an inkblot. It is, sadly, too often misunderstood. Your essay is a wonderful antidote.
Alumni Distinguished Professor of Law
Director, Program on Constitutional Theory, History and Law
University of Illinois College of Law