One sometimes runs across claims that Robert Bork dismissed the Ninth Amendment to the U.S. Constitution as an “ink blot” to be ignored — typically from libertarians who are criticizing this aspect of his judicial philosophy, or using it to criticize that philosophy generally. That’s not quite what he said, and what he did say is more than defensible.
The controversy came out of Bork’s Supreme Court–confirmation testimony. Senator Dennis DeConcini (D., Ariz.) asked Bork about the meaning of the Ninth Amendment. Bork said that he did not know what the amendment meant — in context, I think he was saying he did not know with any degree of certitude. He said as well that “most people say they do not know what it means.”
#ad#He did offer a best guess: “The most sensible conclusion I heard was the one offered in the Virginia Law Review,” namely that the amendment was intended to clarify that guarantees of rights found in state constitutions were valid even if the Constitution did not explicitly guarantee those rights. “That is the best I can do with it,” Bork added. In response to another DeConcini question, he said that he was open to historical evidence that might reveal the meaning of the amendment. He again said, “I just do not know.”
DeConcini pressed him again, and Bork responded,
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.
In response to yet another DeConcini question, Bork responded with what he called “speculation” that the Framers were trying to protect either state constitutional rights or some fixed idea of natural rights that they did not elaborate; and he finished by casting doubt on the idea that the Framers intended that “the court is just entitled to make up constitutional rights.”
Bork expanded on this view of the Ninth Amendment in The Tempting of America, the book he wrote following the Senate’s rejection of his nomination: We don’t have much evidence about what the Founders meant; they may have been trying to protect state-constitutional rights; we have good reason to doubt they meant the amendment to magnify the power of the courts to overturn laws.
Earlier in the book, Bork commented on a common objection to originalism: that we cannot know what lawmakers meant by certain provisions. He argued that in most cases we do have good evidence of meaning, but conceded that sometimes we do not:
The judge who cannot make out the meaning of a provision is in exactly the same circumstance as a judge who has no Constitution to work with. There being nothing to work with, the judge should refrain from working. A provision whose meaning cannot be ascertained is precisely like a provision that is written in Sanskrit or is obliterated past deciphering by an ink blot. No judge is entitled to interpret an ink blot on the ground that there must be something under it.
So to recap: Bork never claimed that the Ninth Amendment is unknowable; he merely said he was not sure of its meaning, although he found one interpretation of it plausible. He said that there was no consensus about what the amendment means, which was certainly true at the time he said it. (Since then, and partly because of the controversy over his remarks, some more historical work and a lot more theorizing have been done.) And he suggested that a legal provision the meaning of which is very unclear cannot be the basis for judicial action, especially the action of nullifying a duly enacted law.
He used the words “ink blot” in making that last point. That point was entirely correct, and indeed it is hard to imagine a plausible argument against it. I suspect the comment will live on, however, as a kind of Rorschach test revealing how those who quote it view judicial power.
— Ramesh Ponnuru is a senior editor of National Review.