This past week, Judge Robert Bork passed away. He was best known for being rejected by the Senate after being nominated to the Supreme Court by President Reagan in 1987.
I remember this well, because I was in college at the time and found myself in an odd position. In the debates around the table at the dorm cafeteria, I found myself arguing, not in defense of Bork, but against the arguments against him, which ranged from the knee-jerk anti-capitalism of ignorant college students to slanderous ad hominems.
The reason I couldn’t really argue for Bork is because I deeply disagree with his theory of jurisprudence. He is known as an advocate of “originalism,” i.e., reading the Constitution according to its original meaning. Which is great, except for the backward way Bork did this. He didn’t hold that, unless the Constitution explicitly authorizes the federal government to do something, it is forbidden from doing it. Instead, he held that unless the Constitution explicitly prohibits the federal government from doing something, it is permitted to do it. Which is pretty much the opposite of the original meaning of the Constitution.
He used this to bar the invented “rights” that the left seeks to read into the Constitution—you know, the right to health care and that sort of thing—but his theory would also bar the Supreme Court from protecting legitimate rights.
What is wrong in Judge Bork’s view is summed up in his infamous statement that the Ninth Amendment is meaningless and might as well be an “ink blot.” (National Review‘s Ramesh Ponnuru tries to defend that statement here, but ends up describing Bork’s views too accurately.)
The issue is well worth understanding, because the Ninth Amendment is the very heart and soul of the Constitution, and no one who doesn’t understand it—as Bork admitted he didn’t—is qualified to sit on the Supreme Court.
I gave a brief talk on this at a local Bill of Rights Day ceremony two years ago, and here is the essence of my explanation.
[T]he Ninth Amendment is abstract and general. Its importance is not in any particular clause establishing any particular right. Instead, its significance is in its view of the basic relationship between the individual and the state. For the people, there are a few actions that are forbidden, but the rest of life is a clear field of action unobstructed by the state. For the state, the reverse holds true: there are a few fields of legitimate action, marked out by the enumerated powers explicitly granted to Congress in the Constitution—but everything outside those fields is blocked off. For the people, the default condition is freedom of action. For the government, the default is constraint and limitation. For the people, that which is not forbidden is permitted. For the government, that which is not permitted is forbidden.
James Madison, the Father of the Constitution and chief author of the Bill of Rights, put it this way, specifically in talking about the role of the Bill of Rights and of the Ninth Amendment: “the powers [of the federal government] are enumerated, and it follows, that all that are not granted by the Constitution are retained; that the Constitution is a bill of powers, the great residuum being the rights of the people.”
Read the whole article; I think it’s one of my best. Jurisprudence on the right has improved since Bork’s heyday. Justice Thomas, in particular, seems to be playing an important role in promoting the Lockean theory of rights as the basis for constitutional interpretation. But enough of his view persists that it is important to understand the real meaning and purpose of the clause that was so opaque to him.