did Scalia (uninentionally of course) help the left

[MarkD]

As long as this thread is being derailed into discussing Hugo Black, there's a few comments about Black I have to respond to.

- snip - Wasn't Hugo Black sort of a "lefty originalist" by today's standards? Or rather he was a textualist but was still seen as part of the court's activist wing.

Black was a textualist and cared very little for arguments about "original intent." He was solidly on the court's left at the beginning of his tenure, though I don't know that I'd class him as part of the "activist wing," especially toward the end of his time on the bench. Different times, different issues.

- snip -He'd be a hard one to place in the current paradigm. He is probably the closest things to a left-wing textualist, although he believed the Equal Protection Clause to cover only race and alienage. He almost certainly would've voted against the holdings in Roe v. Wade and Obergefell. On the other hand, he definitely would've voted to uphold the ACA in its entirety under the Commerce Clause. He also definitely would not find much in common with the current right-wing of the Court in terms of religion (among other things, he wrote both Everson v. Board of Education and Engel v. Vitale). The current Court seems to want to bring down the "wall of separation between church and state" that was held to exist under Justice Black's ruling.

I agree with freepcrusher that Black is the quintessential example of a liberal advocate of original intent, more so than a "textualist." I believe that there are not a lot of differences between orginalism and textualism, but there are some differences. Would a textualist be likely to say that the Establishment Clause and the Free Exercise Clause create a "wall of separation between church and state," or would that be more likely to come from an originalist? Justice Black, of course, was an advocate for inferring "a wall of separation between church and state," from the First Amendment. Would a textualist support interpreting anything in the Constitution as being a requirement of "one man, one vote"? When I read Black's opinion for the Court in Wesberry v. Sanders, I read an opinion that tries to argue that our Founding Fathers intended for the Constitution to require "one man, one vote" in the distribution of seats in the U.S. House of Representatives (tries to, although IMO it is not successful at being persuasive). It certainly does not seem to be a "text-based" approach to interpreting the Constitution. His argument, in his dissent in Griswold v. Connecticut, about what the Ninth Amendment means was certainly based on an originalist approach, not a textualist approach, to interpreting the Constitution. And when Justice Black handed down a "conservative" dissent from Harper v. Virginia Board of Elections, he certainly argued in that dissent that he believes in adhering to "the original meaning of the Constitution." In Harper, the majority opinion stated, "[T]he Equal Protection Clause is not shackled to the political theory of a particular era. In determining what lines are unconstitutionally discriminatory, we have never been confined to historic notions of equality. .... Notions of what constitutes equal treatment for purposes of the Equal Protection Clause do change. This Court, in 1896, held that laws providing for separate public facilities for white and Negro citizens did not deprive the latter of the equal protection and treatment that the Fourteenth Amendment commands. Plessy v. Ferguson. .... When, in 1954 -- more than a half-century later -- we repudiated the "separate-but-equal" doctrine of Plessy as respects public education we stated: 'In approaching this problem, we cannot turn the clock back to 1868, when the Amendment was adopted, or even to 1896, when Plessy v. Ferguson was written.' Brown v. Board of Education."

These statements prompted Black to reply,

The Court's justification for consulting its own notions, rather than following the original meaning of the Constitution, as I would, apparently is based on the belief of the majority of the Court that for this Court to be bound by the original meaning of the Constitution is an intolerable and debilitating evil; that our Constitution should not be "shackled to the political theory of a particular era," and that, to save the country from the original Constitution, the Court must have constant power to renew it and keep it abreast of this Court's more enlightened theories of what is best for our society. [Footnote: In Brown v. Board of Education, the Court today purports to find precedent for using the Equal Protection Clause to keep the Constitution up to date. I did not vote to hold segregation in public schools unconstitutional on any such theory. .... I did not join the opinion of the Court in Brown on any theory that segregation, where practiced in the public schools, denied equal protection in 1954, but did not similarly deny it in 1868, when the Fourteenth Amendment was adopted. In my judgment, the holding in Brown against racial discrimination was compelled by the purpose of the Framers of the Thirteenth, Fourteenth and Fifteenth Amendments completely to outlaw discrimination against people because of their race or color.] ....

Six years before Harper, Black wrote a letter to a friend in which he stated, "My decision [to find segregation unconstitutional] was not the result of brushing aside history nor on the theory that time had made something unconstitutional that had been so since the Fourteenth Amendment was adopted. Some articles that have been written indicating that we did go against history in that case [Brown] are not in accord with my own views." (Hugo Black; A Biography, by Roger Newman, published 1997, page 438.)

Now, I admit that Black was not perfectly consistent about being an originalist. The fact that he was willing to apply the Equal Protection Clause to instances of discrimination against "aliens" and that he inferred "one man, one vote" from the Equal Protection Clause are examples that he did go beyond the original intent of that Clause regarding those two issues. And, as I noted in parentheses above, Black's argument that "as nearly as practicable one man's vote in a congressional election is to be worth as much as another's" was the intended meaning of Article 1, Section 2 of the Constitution was not persuasive; it was based on his political opinion more than a genuine reading of historical intent. But are any of us perfectly consistent in our approach to interpreting law?

[MarkD]

How do you consider his joining Bolling v. Sharpe in establishing reverse incorporation or his majority opinion in Gideon v. Wainwright?

- snip -

I've never read the Gideon opinion, but I certainly know what the case was all about, and I have never had any reason to reject the Court's interpretation of the Constitution or its conclusion. Scholars who I respect a lot have never expressed any opposition to the Court's decision.

I do object to the Court's interpretation of the Due Process Clause of the Fifth Amendment in Bolling v. Sharpe (and some other cases before Bolling -- more about that later), but I do not reject the conclusion that there is something unconstitutional about the federal government having racially discriminatory laws/policies.

Before I get into any of that, I want to quote something that Justice Black once said to one of his clerks in response to the clerk pointing out that Black was contradicting himself about the Due Process Clause, giving that clause a racial equality meaning even though he always rejected "substantive due process." Black told his clerk, "A wise judge chooses, among plausible constitutional philosophies, one that will generally allow him to reach results he can believe in -- a judge who does not to some extent tailor his judicial philosophy to his beliefs inevitably becomes badly frustrated and angry. ... A judge who does not decide some cases, from time to time, differently from the way he would wish, because the philosophy he has adopted requires it, is not a judge. But a judge who refuses ever to stray from his judicial philosophy, and be subject to criticism from doing so, no matter how important the issue involved, is a fool." (Hugo Black; A Biography, by Roger Newman, page 435.)

I do not agree with the Court that the Due Process Clause of the Fifth Amendment can plausibly be interpreted to mean that the federal government has to treat everyone equally with its laws and regulations. Bolling was not actually the first time ever that the Court had said so. Bolling was only the first time that the Court had ever come to the conclusion that the rule about racial equality had been violated. But if you read the whole opinion, you'll see that there were prior cases in which the Court had said that the federal government does have to treat everyone equally. The Bolling Court's opinion cited precedents such as Korematsu v. United States, Hirabayashi v. United States, Detroit Bank v. United States, Currin v. Wallace, and Steward Machine Co. v. Davis, all of which were cases in which the Court said that the Due Process Clause does guarantee equal treatment of the federal government's laws, but in all those cases the Court was not treating the rule about equality as being absolute, and that the federal government had a sufficient reason for treating people unequally. In Korematsu and Hirabayashi the Court decided that the fact that the United States was in a state of war against the Japanese government provided a compelling reason for the federal government to engage in discrimination against people of Japanese ancestry. In the other cases -- which did not involve racial discrimination -- the Court had consistently found a rational, non-arbitrary reason for why the federal government would treat people unequally.

Lastly, although I do not interpret the Due Process Clause of the Fifth Amendment as a rule requiring racial equality, I do see something else in the Constitution that forbids the federal government from engaging in racial discrimination. The correct clause to turn to is in Section 5 of the Fourteenth Amendment: "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." If the federal government has been delegated the power to enforce the Equal Protection Clause, it surely has a responsibility to obey the rule that it will enforce. In Bolling, the Court said, "In view of our decision that the Constitution prohibits the states from maintaining racially segregated public schools, it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government." My intuition about the goals and the philosophy of the men who adopted the Fourteenth Amendment is that they would have agree that it is "unthinkable" for the federal government to have any "lesser duty" to treat everyone equally. (I first read about that interpretation of Section 5 of the 14th in the pages of National Review.)

I’d add that he was more a textualist than an originalist on First Amendment freedom of speech/of the press.

To Black, the words of the First Amendment were intended to mean exactly what the words say. Black said that he has every reason to believe that the authors of the First Amendment meant exactly what they said.

[MarkD]

I'm very comfortable with Miranda v. Arizona, even though some of the constitutional scholars that I most respect have stated that they think the Court went too far in that case.

I'm not as strict and rigid of an originalist as you seem to think I am. It is true that I have a very narrow, strict, and rigid interpretation of the Equal Protection Clause, but that does not mean that I carry that degree of narrowness through with how I interpret all provisions of the Constitution. And I am not sure why you are so certain that decisions such as Gideon and Miranda are not plausibly based on originalist analysis and reasoning. Originalism-based reasoning is not always about identifying specific actions that our Founding Fathers were practicing in order to determine the intended meaning of a provision of the Constitution. Originalists often do rely on nothing more than the text of the Constitution to determine what was intended. That can be and is done with many clauses of the Constitution, depending on how specific they are. So I don't need to see any particular evidence of what the Self-Incrimination Clause of the Fifth Amendment and the Assistance of Counsel Clause of the Sixth Amendment were intended to mean in order to be satisfied that the Court did its job correctly in Miranda.

[MarkD]

I'm quite comfortable with the Warren Court's treatment of the rights of the criminally accused (Mapp, Gideon, Miranda), because of the fact that, going all of the way back to English common law, protecting those rights -- and even proactively creating those rights -- has been a duty for judges more so than the legislative and executive branches of government.

But the Warren Court went too far on numerous other occasions, such as Robinson v. California, Engel v. Vitale and School District of Abington Township v. Schemp, Baker v. Carr and Reynolds v. Sims, Avery v. Midland County, Harper v. Virginia Board of Elections and numerous other "voting rights" cases, Reitman v. Mulkey, Griswold v. Connecticut, and the one I consider to be the worst Warren Court decision, Levy v. Louisiana. The Court's opinion in that one, written by William O. Douglas, is absolutely the worst-written Court opinion I have ever read.

I disagree with Engel and Schemp because I agree with how the Burger Court would later interpret the Establishment Clause in Marsh v. Chambers, and this issue -- regarding the Establishment Clause -- is one in which my dedication to Originalism is as narrow as my interpretation of the Equal Protection Clause.

EDIT: I've thought of two other occasions in which the Warren Court got something wrong.
1) In Loving v. Virginia, Section 2 of the Court's opinion, Earl Warren incorrectly stated that all people have a fundamental right to get married, and that this right is protected by the Due Process Clause of the 14th. It was a "substantive due process" kind of doctrine, and that is always wrong. Not only was Warren wrong to state this is one meaning of the Due Process Clause, but he was also misinterpreting the Court's opinion in Maynard v. Hill, (1888).
2) In Benton v. Maryland, the Court incorporated the Double Jeopardy principle of the Fifth Amendment into the Fourteenth Amendment so that it would be applicable to the states. That conclusion is not what I object to. What I object to is that Justice Thurgood Marshall, writing the Benton majority opinion, stated that the 1937 precedent of Palko v. Connecticut had come to the opposite conclusion -- whether the Double Jeopardy principle is incorporated in the 14th -- and explicitly overturned Palko on that point of law. Marshall described what had happened in 1937 this way,

[Defendant] Palko argued that the Fourteenth Amendment incorporated, as against the States, the Fifth Amendment requirement that no person "be subject for the same offence to be twice put in jeopardy of life or limb." The Court disagreed. Federal double jeopardy standards were not applicable against the States. ...
[W]e today find that the double jeopardy prohibition of the Fifth Amendment represents a fundamental ideal in our constitutional heritage, and that it should apply to the States through the Fourteenth Amendment. Insofar as it is inconsistent with this holding, Palko v. Connecticut is overruled.

The problem is that when Justice Cardozo wrote Palko, he did not say that the Double Jeopardy Clause is not incorporated in the 14th. He said, in effect, this case is not the right time for us to answer the question of whether or not the Double Jeopardy Clause is incorporated in the 14th. The answer to that question will have to wait to some future case in which a person who was put on trial once and that first trial was fair and did not have any substantial legal errors was then eventually put on trial again. Once we see a case like that, we will address the question of whether the Double Jeopardy Clause is incorporated.
Here is what Cardozo wrote in 1937,

Is that kind of double jeopardy to which the statute has subjected him a hardship so acute and shocking that our polity will not endure it? Does it violate those "fundamental principles of liberty and justice which lie at the base of all our civil and political institutions"? The answer surely must be "no." What the answer would have to be if the state were permitted after a trial free from error to try the accused over again or to bring another case against him, we have no occasion to consider. We deal with the statute before us, and no other. The state is not attempting to wear the accused out by a multitude of cases with accumulated trials. It asks no more than this, that the case against him shall go on until there shall be a trial free from the corrosion of substantial legal error. This is not cruelty at all, nor even vexation in any immoderate degree. [Emphasis added.]

Thurgood Marshall couldn't even see past the end of his nose and see the part that I put in italics. Or he saw it and did not comprehend it. So because he claimed, unnecessarily, that Palko was overruled, when anybody reads the Wikipedia page about Palko, they will see that this case has been overruled, and maybe that will make them think they might as well avoid reading it, even though it's a fascinating opinion.

[MarkD]

First of all, regarding why I disapprove of Robinson v. California. In my consideration, the Cruel and Unusual Punishment Clause addresses the methods of punishment used and the severity of the punishment. That Clause does not address what things should or should not be punished at all. Is it cruel and unusual punishment for a death sentence to be carried out by squishing the convicted person under a steamroller, feet first? Is it cruel and unusual punishment to impose a 20-year prison sentence for an act of jaywalking, in which the incident that occurred did not result in anyone being hurt and there was no significant property damage? Those kinds of questions are what the Clause addresses. But whether or not drug dependency is something that ought not ever be punished at all is not what the Clause addresses. Imposing punishment on someone for drug dependency is certainly unusual, but I don't see how courts of law can deem that punishment to be cruel. I agree with dissenting Justice White's observation that what the Court had done in Robinson is actually revive substantive due process reasoning and masquerade it behind the Cruel and Unusual Punishment Clause.

Second, regarding the Establishment Clause and Justice Black's paragraph, in Everson, that explains the scope that the Court appear to believe that Clause has. I want to break down that paragraph into its seven component sentences.

1) Neither a state nor the federal government can set up a church.
2) Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another.
3) Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion.
4) No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance.
5) No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion.
6) Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa.
7) In the words of Jefferson, the clause against establishment of religion by law was intended to erect "a wall of separation between church and State."

Sentence 1 has the potential of being troublesome, depending on how we interpret that sentence. If it was meant to convey nothing more than the plain meaning of the words in the Establishment Clause -- that there shall be no adoption of an official state religion -- then that's fine. But what else might that sentence mean when it says do not "set up a church?" Military bases and prisons "set up" chapels so that members of the armed services and prisoners can go to a church, so that they can worship in the chapel. Do military bases and prisons violate the Establishment Clause when they set up a chapel?
Sentences 2 and 5 have the same problem as sentence 1 regarding military base chapels and prison chapels. Doesn't a government "aid all religions" when it creates chapels? Doesn't government "support ... religious activities" with taxpayer dollars when they set up chapels and pay chaplains to perform worship services in the chapels? And sentences 2 and 5 seem to also prohibit legislative chaplains too, which (as I pointed out above) the Supreme Court have explicitly found to not be a violation of the Establishment Clause in the case of Marsh v. Chambers.
There are two minor problems with sentences 3 and 4. One minor problem is that sentence 4 is completely redundant of sentence 3. The other minor problem is those sentences describe the purpose of the Free Exercise of Religion Clause, rather than the Establishment Clause. I certainly don't object to any judges finding those two sentences to be the meaning of the Free Exercise Clause.
Sentence 6 seems odd: does that sentence mean that no government officials can ever go to any churches and "participate in" worship services? That would certainly be a completely contradictory way to interpret both the Establishment Clause and the Free Exercise Clause at the same time. Does the "vice versa" ending to that sentence mean that church officials are not allowed to "participate in" the process of lobbying legislatures, such as trying to lobby against the death penalty, or for more government spending on welfare programs? If those aren't what that sentence means, what does the sentence mean?
Sentence 7 is okay to me, because I have no objection to inferring, from the two religion clauses of the First Amendment, that there is a wall of separation between church and state. I have no objection to the notion that the "wall" requires that governmental entities must remain "separate" from church entities; that the two kinds of entities can never become wedded, or joined together, so that one can have complete control over the other. Government's power to govern the people of the jurisdiction can never be taken over by any churches. So I approve of the Court's conclusion and reasoning in Larkin v. Grendel's Den, Inc.

Third, yes, I approve of Employment Division v. Smith, although I wonder whether the Court has been and will be consistent about applying the doctrine.

Lastly, I don't see a logical connection between the concept of "freedom of association" and the act of getting married. If that were supposed to be a logical connection, then everyone has a right to engage in polygamy, not just bilateral marriage. Back in 1965, when the Court was considering Griswold v. Connecticut, Justice Douglas was trying to connect the concept of freedom of association to the "privacy" of a married couple who wished to use contraceptives. It has been reported that, behind the scenes, when the Justices were deliberating Griswold in their conference session, Justice Black responded to the logic that marital privacy had something to do with the First Amendment by saying, "[The] right of association is for me [a] right of assembly and [the right] of husband and wife to assemble in bed is [a] new right of assembly to me." (Reported in "Of Power and Right," by Ball and Cooper, published 1992, page 286. The authors got that quote from a box of papers stored by Justice Brennan.) And I say again, that the Court's opinion in Loving, Section 2, claimed to infer the fundamental right to marry from nothing more in the Constitution than the Due Process Clause of the Fourteenth Amendment.

[MarkD]

Just answering your questions:

Since the issue in Trop v. Dulles was whether the punishment was too severe, it was not like Robinson v. California. I don't know whether I agree with the Court's conclusion about whether that punishment was too severe; I would have to spend some more time studying it to decide how I would vote on that issue, but the premise that the Court was inferring from the Cruel and Unusual Punishment Clause was a valid premise.

I believe that freedom of association is inferred from the Freedom of Assembly Clause in the First Amendment, but that freedom is a political freedom - so that people can advance their political goals - and it does not extend so far as to cover marriages and sex acts. That kind of extension was what Justice Douglas was going for in his first draft for Griswold v. Connecticut: freedom of assembly means freedom of association, freedom of association covered the political activities of the NAACP in the case of NAACP v. Alabama, and if the freedom of association covered the political activity of NAACP, it can also be stretched to cover the sexual activity of a married couple. That stretch in logic was too much for Hugo Black to agree with, and it's too much of a stretch in logic for me.

[MarkD]

How about the late Nineteenth Century?

Throughout the the nineteenth century, marriage was considered to be a common law right, not a constitutional right. [Meister v. Moore, (1877).] Common law rights are derived from a combination of judicial pronouncements and custom and are subject to legislative revision or revocation. Marriage therefore was subject to state regulation so long as the state was sufficiently clear that it was intending to alter the common law.
In 1877, in Pennoyer v. Neff, the [Supreme] Court explicitly stated that "The State ... has an absolute right to prescribe the condition upon which the marriage relation between its own citizens shall be created, and the cause for which it may be dissolved." The next year, in Reynolds v. U.S., the Court held that the government had the power to outlaw polygamy and that the marriage contract was subject to state power, as were the terms of any other civil contract. "Marriage, while from its very nature a sacred obligation, is nevertheless, in most civilized nations, a civil contract, and usually regulated by law." Finally, ten years later, in Maynard v. Hill, the Court stated, "Marriage, as creating the most important relation in life, as having more to do with the morals and civilization of a people than any other institution, has always been subject to the control of the legislature."
These early decisions, however, must be read in their historical context. It is not surprising that throughout much of the nineteenth century, the Court declined to call marriage a fundamental right because the concept of unenumerated fundamental rights did not exist at all until the end of that century. Indeed, the Court did not really enforce even many of the rights explicitly guaranteed in the Bill of Rights, such as freedom of speech, until the middle of the twentieth century. The history of constitutional law is riddled with Court cases upholding prison terms for peacefully expressing opposition to war and the draft or for joining the Communist Labor Party. [See, respectively, Schenk v. United States, Whitney v. California.] It would be surprising indeed for the nineteenth century Court to declare marriage, or anything else, a fundamental right. ("Same-Sex Marriage and the Constitution," by Evan Gerstmann, (2003), pages 73-74.)

Prof. Gerstmann says that the first time in which the Court decreed that marriage was a fundamental right protected by the Fourteenth Amendment was in the 1923 case of Meyer v. Nebraska.

Regarding whether "the government" (whichever one that is) should be allowed to have "virtually unlimited power over the individual," I believe strongly in respecting the concept of federalism, which means that the state governments have different powers than the federal government, and that the federal government should only prohibit the states from doing things that the U.S. Constitution explicitly prohibits the states from doing (or which would contradict the federal government's enumerated powers). Of course, I admit that the Fourteenth Amendment is extremely vague about what the states are prohibited from doing (I remember reading somewhere that Justice Frankfurter once said that the Fourteenth Amendment's second sentence has "purposed vagueness"), but surely that should not mean that federal courts have carte blanche to imbue the Ninth Amendment into the Fourteenth, and/or to give the Fourteenth whatever natural law meaning that federal judges feel like giving it. I believe in judicial restraint too, which as far as I'm concerned goes hand-in-hand with originalism.

EDIT: because the second sentence of the Fourteenth is very brief and vague, I am proposing that we adopt a constitutional amendment that rewrites that sentence to make the meaning of it narrower and clearer. That suggestion is in my signature, and I have often asked people in this forum whether they would support my proposal.

[MarkD]

I would say that numerous common law rights are retained by the people, even if they aren't explicitly written in the text of the Constitution. Those rights apply where the Constitution is otherwise silent or textually in opposition. This is one of the rare times when I would invoke the Ninth Amendment. Marriage was indeed a common law right, but I believe it became a constitutional right under the Ninth Amendment. That does not mean there are per se positive rights or benefits, but the right is retained by the people and it cannot be denied or disparaged. The Fourteenth Amendment is what changed that right from being one of one man and one woman of the same race to two individuals regardless of race or gender.

I think that the only kind of common law rights that should be treated as rights protected by the U.S. Constitution are those rights that come under the umbrella heading of procedural due process. The quintessential example of an unenumerated right that is protected by the Due Process Clause is the right of an accused person to be presumed innocent until proven guilty and there must be proof beyond a reasonable doubt. So I disagree with Justice Black's conclusion in In Re Winship. But substantive rights that had been recognized in the common law must not become elevated to the status of constitutionally-protected rights. Substantive issues that the common law addressed have always been treated as if they will be inferior to statutory law once a legislature has passed a statute that clearly indicates the legislature wishes to supplant common law. Even on the various occasions in which the SCOTUS has claimed that the "fundamental right" to get married is constitutionally-protected (Meyer v. Nebraska, Loving v. Virginia, Zablocki v. Redhail, Obergefell v. Hodges), it has never cited common law as any part of the reason why it said that.

The Ninth Amendment.
I'm 56 years old now. I have been thinking about the Ninth Amendment for over half of my life.
I came out of the closet when I was 18, and started participating in the gay community's events when I was 19. The Supreme Court handed down its decision in Bowers v. Hardwick when I was 21. At first, I was on the gay community's bandwagon in wanting to get that decision overturned ASAP. I held onto the desire to overturn Bowers for about 4-5 years after the decision was handed down. I was thinking about using the Ninth Amendment as the basis for overturning Bowers during those years.
But when I read Robert Bork's "The Tempting of America," I started to realize that the SCOTUS had come to the correct conclusion in Bowers, and so I was wrong to want for it to be overturned. Various things that "Tempting" taught me about substantive due process and the "right to privacy" were the reasons I was gradually changing my mind. The only thing that "Tempting" did not teach me was what the Ninth Amendment means. Bork's explanation for what the Ninth means was completely unpersuasive. Bork said that the Ninth maintains the relevancy of the bills of rights in the state constitutions. When I read that explanation in "Tempting," it seemed to lack the ring of truth. So I wanted to learn more about the Ninth Amendment.
Bork's book inspired me to delve into reading the various opinions written by Justices in the 1965 case of Griswold v. Connecticut. Six Justices wrote opinions in that case: four for the majority side and two by the dissenters. Both dissenting Justices were far more persuasive to me than any of the four opinions by the majority Justices, and I have always maintained that Black's dissent is one of the most fascinating, informative, and important Supreme Court opinions I have ever read. But before I quote Black, here is Justice Stewart's explanation of what the Ninth means.

The Court also quotes the Ninth Amendment, and my Brother GOLDBERG's concurring opinion relies heavily upon it. But to say that the Ninth Amendment has anything to do with this case is to turn somersaults with history. The Ninth Amendment, like its companion, the Tenth, which this Court held "states but a truism that all is retained which has not been surrendered," United States v. Darby, was framed by James Madison and adopted by the States simply to make clear that the adoption of the Bill of Rights did not alter the plan that the Federal Government was to be a government of express and limited powers, and that all rights and powers not delegated to it were retained by the people and the individual States. Until today, no member of this Court has ever suggested that the Ninth Amendment meant anything else, and the idea that a federal court could ever use the Ninth Amendment to annul a law passed by the elected representatives of the people of the State of Connecticut would have caused James Madison no little wonder.

Black indicated that he agreed with Stewart, and explained the Ninth in almost exactly the same way that Stewart had said,

That Amendment was passed not to broaden the powers of this Court or any other department of "the General Government," but, as every student of history knows, to assure the people that the Constitution in all its provisions was intended to limit the Federal Government to the powers granted expressly or by necessary implication. If any broad, unlimited power to hold laws unconstitutional because they offend what this Court conceives to be the "[collective] conscience of our people" is vested in this Court by the Ninth Amendment, the Fourteenth Amendment, or any other provision of the Constitution, it was not given by the Framers, but rather has been bestowed on the Court by the Court. This fact is perhaps responsible for the peculiar phenomenon that, for a period of a century and a half, no serious suggestion was ever made that the Ninth Amendment, enacted to protect state powers against federal invasion, could be used as a weapon of federal power to prevent state legislatures from passing laws they consider appropriate to govern local affairs. Use of any such broad, unbounded judicial authority would make of this Court's members a day-to-day constitutional convention.

I eventually realized that Black had said one thing wrong in that quote: he made it sound as if the Ninth Amendment and the Tenth Amendment mean identical things. The Ninth does not say anything about the powers of the states, it's the Tenth which refers to those powers. Because the things which Stewart and Black said seemed to me, at the time, to ring much closer to the truth, I decided to read more books that discussed what the Ninth Amendment means. Two of the most important books I read were Bernard Schwartz's "The New Right and the Constitution," and John Hart Ely's "Democracy and Distrust." Neither of those authors convinced me that their interpretation of the Ninth was correct, but they both taught me about what the Ninth was intended to mean by the people who, in 1789-1791, adopted the Ninth Amendment.
Schwartz made it perfectly clear that the Ninth was indeed intended to have the meaning that Stewart and Black described in Griswold. But that didn't matter to Schwartz, because he didn't give a rat's a55 what anything in the Constitution was intended to mean, as he made clear in the first chapter of the book. All Schwartz cared about is what meaning the Court gives to the provisions of the Constitution -- and even then he agreed with the meaning that the Court gives as long as the Court is producing a left-wing outcome, not with any right-wing outcomes. Thus, Griswold and Roe are legitimate decisions of the Court, but the Lochner Era decisions are not.
Ely (who respects the philosophy of Originalism much more than Schwartz) acknowledged that Stewart's and Black's interpretation of the Ninth is the traditional interpretation (he called it the "received" interpretation), but he thought that since Black's interpretation of the Ninth made that amendment and the Tenth Amendment perform redundant functions, then there must be something wrong with the traditional interpretation. He struggled to explain that the Ninth was actually intended to mean two things: one intended meaning is what the "received" interpretation has long said, but the other meaning is that the Ninth protects "rights" that are not the reciprocal of enumerated powers, but are "rights" independent of that reciprocal relationship. He said that "rights can cut across or 'trump' powers," such as First Amendment rights being capable of defeating claims that the federal government can always absolutely regulate any interstate commerce. However, once you understand the whole of his book, you'll recognize that the only meaning he gives to the Ninth is that it is the federal government's Equal Protection Clause, thus providing an alternative basis for validating Bolling v. Sharpe.

Thus, because of what I read in "The New Right and the Constitution" and "Democracy and Distrust," I realized that Black and Stewart were almost entirely correct. Black was wrong only insofar as he tried to treat the Ninth as if it means the same thing as the Tenth. The Ninth and the Tenth do not perform identical functions, but they perform parallel functions. That is so if you care about the original meaning of the Ninth. As Stewart said, that meaning is the only meaning that any member of the Court had ever given the Ninth until the Griswold case came along. And if you do respect that was the original meaning of the Ninth, then the only logical way to incorporate the Ninth into the Fourteenth, and thus have federal courts supervise the validity of state and local laws, is if the federal courts took it upon themselves to interpret state constitutions and local charters, and to determine whether challenged state and local laws exceed powers delegated by each respective state constitution or local charter. But to me, even doing that would seem to go beyond what the ratifiers of the Fourteenth wanted federal courts to do. And I say that as someone who believes in judicial restraint, too.