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July 23, 2002
KYLE STILL AND JEFF COOPER have an interesting debate going concerning the Ninth Amendment. I'm a big Ninth Amendment fan. I don't agree with Cooper, though, that the Ninth Amendment poses a problem for strict constructionists. It only poses a problem for intellectually dishonest strict constructionists of the Robert Bork variety. I spelled this out at (no doubt excessive) length in a 1990 law review article entitled Sex, Lies and Jurisprudence: Robert Bork, Griswold, and the Philosophy of Original Understanding, which unfortunately isn't available on the web.
The gist was that if you believe in following the Framers' intentions, and if the Framers clearly believed in unenumerated rights, then you can't dismiss the Ninth Amendment as a mere "inkblot," as Bork did in his confirmation hearings. If you've got access to a law library, the cite is 24 Ga. L. Rev. 1045 (1990).
UPDATE: I've uploaded an HTML version. It's a bit on the lengthy side. On the same topic, but much shorter, is this piece, entitled Penumbral Reasoning on the Right, that appeared in the Penn law review in 1992. Should you fail to slog through the first piece, please understand that it is not an argument that original understanding is bad as a means of interpretation, only that (1) it won't do what Bork claims; and (2) won't produce the results he wants. Indeed, in the Sex piece I demonstrate that the very sources cited by Bork in criticizing Griswold v. Connecticut turn out to actually support the reasoning of the majority, rather than Bork's critique. (It's difficult to believe that Bork actually read Joseph Story very closely, in light of what Story says as compared to what Bork says, despite Bork's repeated invocation of Story as a key source of understanding regarding the Framers' intent.) If you don't read the whole thing, you can find the nub of the argument at page 1081 (*1081).
So there. More law-review stuff than I usually put on InstaPundit, but occasionally the day job intrudes.