The Invisible Constitution in Comparative Perspective

Griswold, 381 U.S. at 482–6.

148 

E.g., Robert H. Bork, The Tempting of America 98 (1990).

149 

381 U.S. at 484.

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46 

Laurence H. Tribe

ing meta-principle directing the Federal Government and all its branches, 

including the Judiciary, never to regard the piecemeal and incomplete char-

acter of the enumerated substantive and procedural rights as preclusive of 

other rights, depending on the circumstances. That Amendment states: “[t]

he enumeration in the Constitution of certain rights shall not be construed to 

deny or disparage others retained by the people.”

150

Griswold thus constituted an instance in which the Constitution’s own 

text did not in fact silently leave the Court free to choose between Douglas’s 

approach and that of the dissenting justices, each of whom treated the 

Constitution’s silence on the existence of a right to intimate personal, sexual, 

or marital privacy – its failure to “enumerate” that right in the Bill of Rights 

or anywhere else in the Constitution – as though that silence represented a 

constitutional prohibition on the recognition of any such a right and on its 

federal judicial enforcement.

151

 Properly understood, the Ninth Amendment 

is a command, directed to all federal officials (including, of course, Supreme 

Court Justices), about how not to construe the rest of the Constitution’s text.

Although Justice Goldberg, concurring separately, invoked the Ninth 

Amendment in just the right way (for the first time ever in any Justice’s opin-

ion, whether for the Court or in a concurrence)

152

 – a tribute, I think, to my 

friend and former Harvard colleague Stephen Breyer, the Justice who had been 

Goldberg’s law clerk at the time – the truth is that the Ninth Amendment’s 

meta-rule had never before been treated as a serious source of, or constraint 

on, constitutional doctrine. Indeed, although his having done so may in signif-

icant part help to explain Judge Robert Bork’s lopsided rejection by the Senate 

when President Reagan nominated him to the Court, Bork had casually dis-

missed the Ninth Amendment’s rule of construction as an incomprehensible, 

and therefore judicially unenforceable, “ink blot” during his confirmation 

hearings roughly two decades after Griswold, which he famously went out on 

a limb to denounce.

153

Whatever the most convincing explanation for Griswold v. Connecticut 

might be, that decades-old decision, now part of the firmly settled constitutional 

150 

U.S. Const. amend. IX (emphasis added).

151 

381 U.S. at 510 (Black. J., dissenting; “I like my privacy as well as the next one, but I am never-

theless compelled to admit that government has a right to invade it unless prohibited by some 

specific constitutional provision.”); 

ibid.

, at 530 (Stewart, J., dissenting; “With all deference, I 

can find no such general right of privacy in the Bill of Rights . . .”).

152 

See 

ibid.

, at 488–90 (Goldberg, J., concurring).

153 

See  Ramesh  Ponnuru, “Judge Bork’s Ink Blot,” National Review (December 20, 2012, 4:00 

A.M.), 

www.nationalreview.com/article/336142/judge-borks-ink-blot-ramesh-ponnuru

 [

https://

perma.cc/BLY6-UCWS

]; Steven F. Hayward, The Age of Reagan, 565–6 (2009).

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