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Of Inkblots And Originalism: Historical Ambiguity And The Case Of The Ninth Amendment, Kurt T. Lash
Of Inkblots And Originalism: Historical Ambiguity And The Case Of The Ninth Amendment, Kurt T. Lash
Law Faculty Publications
Ever since Justice Goldberg's concurring opinion in Griswold v. Connecticut, 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 has been particularly subjected to intense criticism. 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.
It turns out, however, that not only was Judge Bork right to reject Justice Goldberg's reading of the Ninth Amendment, …