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Kurt Lash's Majoritarian Difficulty: A Response To A Textual-Historical Theory Of The Ninth Amendment, Randy E. Barnett
Kurt Lash's Majoritarian Difficulty: A Response To A Textual-Historical Theory Of The Ninth Amendment, Randy E. Barnett
Georgetown Law Faculty Publications and Other Works
Kurt Lash believes that, in addition to individual natural rights, the Ninth Amendment protects collective or majoritarian rights as well. In this essay the author explains why Lash’s majoritarian vision is contrary to the antimajoritarianism of the man who devised the Ninth Amendment, James Madison, and those who wrote the Constitution. Not coincidentally, it is contrary to the individualism of the other amendments constituting the Bill of Rights, and the public meaning of the Ninth Amendment as it was received during its ratification. It is also contrary to the individualist conception of popular sovereignty adopted in the text of the …
Constitutional Possibilities, Lawrence B. Solum
Constitutional Possibilities, Lawrence B. Solum
Georgetown Law Faculty Publications and Other Works
What are our constitutional possibilities? The importance of this question is illustrated by the striking breadth of recent discussions, ranging from the interpretation of the United States Constitution as a guarantee of fundamental economic equality and proposals to restore the lost constitution to arguments for the virtual abandonment of structural provisions of the Constitution of 1789. Such proposals are conventionally understood as placing constitutional options on the table as real options for constitutional change. Normative constitutional theory asks the question whether these options are desirable--whether political actors (citizens, legislators, executives, or judges) should take action to bring about their plans …