(Episode 28) Bork: It's Not What's for Dinner (the Ninth Amendment)

In this second-last episode of Season Three, we discuss the Ninth Amendment to the United States Constitution, which states:

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

The meaning of this Amendment seems pretty straightforward. Just because a right isn't listed as protected in the Constitution doesn't mean that other rights that aren't listed aren't protected. Simple, right? (Hint: if you've been listening for awhile, you should know that the answer, as usual, is "not exactly.")

The Ninth Amendment was added to address "one of the most plausible arguments" made by Anti-Federalists against adding a bill of rights: that if the right isn't listed, then it seems like the Constitution is giving that power to the government, or otherwise restricting the right of the people. So the Ninth Amendment appears to have been added "merely for greater caution" (in Madison's words). In fact, courts have rarely relied on the Ninth Amendment in making their decisions.

What rights are we talking about though? It says "certain rights...retained by the people." What rights are those? And the phrase "shall not be construed to deny or disparage" doesn't necessarily mean that the rights are affirmed or identified - just that they aren't less important than the ones listed.

Interest in the Ninth Amendment spiked in 1987 when a man named Robert Bork was nominated by Ronald Reagan to serve on the Supreme Court.  Ultimately, the Senate voted not to confirm him, but during his confirmation hearings, Bork likened the Ninth Amendment to an "inkblot," saying:

"I do not think you can use the Ninth Amendment unless you know something of what it means. For example, if you had an inkblot 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."

Is the Ninth Amendment like an inkblot? And what kinds of rights might the Ninth Amendment be referring to? The right to raise your kids as you see fit? Maybe, but maybe not. The right to privacy? The Ninth is part of the penumbra that creates it. What other rights are retained by the people, and how do we know?

Pour yourself a glass of your favorite beverage (unless you're driving), settle in, and join us for a fun philosophical chat which unexpectedly draws some parallels to Kavanaugh's confirmation hearings and which, amazingly, did not result in Mao electrocuting himself on our sound equipment. (Seriously, the cat is fine. He's just a weirdo.)

Other sources:
1. For more on Griswold v. Connecticut, and also another case about contraception (this one wasn't decided on privacy grounds, though);
2. The Meaning and Legal Effect of the Ninth Amendment by Randy E. Barnett;
3. On the history of the Ninth Amendment, and why it raises more questions than answers, check out The Ninth Amendment: For Us, The Living by Louis Michael Seidman.