It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow, by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution.
J. Madison
It was argued that a bill of rights in the constitution was a bad idea. If we list a set of rights, freedom of speech, freedom of assembly etc. then future generations may come to the, false, conclusion that other rights, unlisted rights, are not inalienable. The right to use birth control may not be protected. The right to choose a professon may not be protected.
Senator DeConcini:
But we are talking here about a little bit different use or I believe a constitutional right of privacy. Let me just pursue with you.
You said yesterday, relating to a question that Senator Hatch asked you regarding Roe v. Wade and the ninth amendment, its application—and correct me please—you said something that nobody really knows what that amendment means. Is that correct?
Judge Bork:
It could be—you know, I can speculate.
Senator DeConcini:
Do you have an opinion on the ninth amendment?
Judge Bork:
The most sensible conclusion I heard was the one offered in the Virginia Law Review, which was that the enumeration, as the ninth amendment says—
Senator DeConcini:
Enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.
Judge Bork:
:That is right, Senator. And I think the ninth amendment therefore may be a direct counterpart to the 10th amendment. The 10th amendment says, in effect, that if the powers are not delegated to the United States, it is reserved to the States or to the people.
And I think the ninth amendment says that, like powers, the enumeration of rights shall not be construed to deny or disparage rights retained by the people in their State Constitutions. That is the best I can do with it.
Senator DeConcini:
Yes. You feel that it only applies to their State constitutional rights.
Judge Bork:
Senator, if anybody shows me historical evidence about what they meant, I would be delighted to do it. I just do not know.
Senator DeConcini:
I do not have any historical evidence. What I want to ask you is purely hypothetical, Judge. Do you think it is unconstitutional, in your judgment, for the Supreme Court to consider a right that is not enumerated in the Constitution—
Judge Bork:
Well, no.
Senator DeConcini:
—to be found under article IX?
Judge Bork:
There are two parts to that. First, there are some rights that are not enumerated but are found because of the structure of the Constitution and government. That is fine with me. I mean that is a legitimate mode of constitutional analysis.
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.
Senator DeConcini:
Let me ask you this question: If you had to speculate, what do you think Madison or some of the framers had in mind as to unenumerated rights?
Judge Bork:
They might have had in mind—this is pure speculation, which I do not think is—
Senator DeConcini:
I understand. I said this is all hypothetical.
Judge Bork:
All right. They might have had in mind what I said about the enumeration of these does not entitle judges to override the state constitutional rights. They also might have had in mind perhaps a fixed category of what they regarded as natural rights, although if they did have in mind a category of natural rights, I am a little surprised they did not spell it out and put it into the Constitution, because they specified all the other rights.
There is little evidence that I know of that this was to be a dynamic category of rights, that is that under the ninth amendment the court was free to make up more Bill of Rights. There is no evidence of that at all that I know of. And I think that had that been their objective, they could have spelled it out a lot better, and a lot of the constitutional debates we had right after the Constitution was formed, and John Marshall began applying the Constitution and so forth, would have been irrelevant debates because the court is just entitled to make up constitutional rights.
Senator DeConcini:
Would you say that in your judgment it would be unconstitutional for the Supreme Court to find a right—we will not say what it is, but Right A—
Judge Bork:
If a Supreme Court makes—
Senator DeConcini:
[continuing]. Because it is not enumerated here.
Judge Bork:
If the Supreme Court makes up a new right for which there is not historical evidence, then I think it has exceeded its powers under the Constitution.