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Constitutional Law

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Rights

1996

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Federalism And The Protection Of Rights: The Modern Ninth Amendment’S Spreading Confusion, Thomas B. Mcaffee Jan 1996

Federalism And The Protection Of Rights: The Modern Ninth Amendment’S Spreading Confusion, Thomas B. Mcaffee

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Blindness to a basic understanding of the framers' design of our federal structure is largely responsible for the confusion that surrounds our understanding of the Ninth Amendment. The Ninth Amendment reads: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” In Griswold v. Connecticut, Justices Black and Stewart explained in separate dissenting opinions that the Ninth Amendment's reference to the other rights “retained by the people” alluded to the collective and individual rights the people “retained” by virtue of granting limited, enumerated powers to the national government ...


A Critical Guide To The Ninth Amendment, Thomas B. Mcaffee Jan 1996

A Critical Guide To The Ninth Amendment, Thomas B. Mcaffee

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Since the Supreme Court's decision in Griswold v. Connecticut, thousands of law students each year have confronted a confusing debate over the meaning of the Ninth Amendment. Writing for the majority in Griswold, Justice Douglas included the Ninth Amendment among the sources for deriving the “penumbral” right of privacy. More central to this article, in a separate concurrence Justice Goldberg contended that the Amendment provided a basis for the discovery of fundamental human rights beyond those included in the text of the Constitution and the Bill of Rights. In response, the dissenting Justices, Stewart and Black, argued that Goldberg ...


Substantive Due Process And Free Exercise Of Religion: Meyer, Pierce And The Origins Of Wisconsin V. Yoder, Jay S. Bybee Jan 1996

Substantive Due Process And Free Exercise Of Religion: Meyer, Pierce And The Origins Of Wisconsin V. Yoder, Jay S. Bybee

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In this paper the author examines the nature of parents' due process right to direct the education of their children and its relationship to the First Amendment. The article begins with the hardiest of the U.S. Supreme Court's early substantive due process decisions: Meyer v. Nebraska and Pierce v. Society of Sisters. Meyer struck down a Nebraska law forbidding the teaching of foreign language in public or private schools; Pierce struck down an Oregon law requiring attendance at public schools. Part I recounts that the laws in both cases were the result of complex forces, uniting groups as ...