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Of inkblots and originalism: historical ambiguity and the case of the Ninth Amendment.
- Article from:
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Harvard Journal of Law & Public Policy
- Article date:
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March 22, 2008
- Author:
- Lash, Kurt T.
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Copyright informationCOPYRIGHT 2008 Harvard Society for Law and Public Policy, Inc. This material is published under license from the publisher through the Gale Group, Farmington Hills, Michigan. All inquiries regarding rights should be directed to the Gale Group. (Hide copyright information)
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Ever since Justice Goldberg's concurring opinion in Griswold v. Connecticut, (1) 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 (2) has been particularly subjected to intense criticism. (3) 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. (4)
It turns out, however, that not only was Judge Bork right to reject Justice Goldberg's reading of the Ninth Amendment, his ...