Open Access. Powered by Scholars. Published by Universities.®
- Institution
-
- University of Nevada, Las Vegas -- William S. Boyd School of Law (10)
- University of Richmond (10)
- University of Michigan Law School (7)
- Georgetown University Law Center (6)
- Maurer School of Law: Indiana University (3)
-
- Fordham Law School (2)
- Selected Works (2)
- University of Denver (2)
- University of Maryland Francis King Carey School of Law (2)
- BLR (1)
- Claremont Colleges (1)
- Cleveland State University (1)
- Columbia Law School (1)
- Pepperdine University (1)
- Seattle University School of Law (1)
- St. John's University School of Law (1)
- The University of Akron (1)
- Touro University Jacob D. Fuchsberg Law Center (1)
- University of Cincinnati College of Law (1)
- University of Colorado Law School (1)
- University of Oklahoma College of Law (1)
- Vanderbilt University Law School (1)
- Washington and Lee University School of Law (1)
- Publication Year
- Publication
-
- Law Faculty Publications (10)
- Scholarly Works (7)
- Georgetown Law Faculty Publications and Other Works (6)
- Michigan Law Review (6)
- Faculty Scholarship (4)
-
- Indiana Law Journal (3)
- Nevada Law Journal (3)
- Sturm College of Law: Faculty Scholarship (2)
- Akron Law Review (1)
- Articles (1)
- CMC Senior Theses (1)
- Daniel A Farber (1)
- ExpressO (1)
- Faculty Articles and Other Publications (1)
- Faculty Publications (1)
- Journal of Law and Health (1)
- Oklahoma Law Review (1)
- Pepperdine Law Review (1)
- Phoebe A. Haddon (1)
- Schmooze 'tickets' (1)
- Seattle University Law Review (1)
- Supreme Court Case Files (1)
- The Future of Natural Resources Law and Policy (Summer Conference, June 6-8) (1)
- Touro Law Review (1)
- Vanderbilt Law Review (1)
- Publication Type
Articles 1 - 30 of 58
Full-Text Articles in Law
The Ninth Amendment: An Underutilized Protection For Reproductive Choice, Layne Huff
The Ninth Amendment: An Underutilized Protection For Reproductive Choice, Layne Huff
Journal of Law and Health
Concern about individual rights and the desire to protect them has been part of our nation since its founding, and continues to be so today. The Ninth Amendment was created to assuage the Framers’ concerns that enumerating some rights in the Bill of Rights would leave unenumerated rights unrecognized and unprotected, affirming that those rights are not disparaged or denied by their lack of textual support. The Ninth Amendment has appeared infrequently in our jurisprudence, and Courts initially construed it rather narrowly. But starting in the 1960s, the Ninth Amendment emerged as a powerful tool not just for recognizing unanticipated …
Towards A Dramaturgical Theory Of Constitutional Interpretation, Jessica Rizzo
Towards A Dramaturgical Theory Of Constitutional Interpretation, Jessica Rizzo
Seattle University Law Review
Like legal texts, dramatic texts have a public function and public responsibilities not shared by texts written to be appreciated in solitude. For this reason, the interpretation of dramatic texts offers a variety of useful templates for the interpretation of legal texts. In this Article, I elaborate on Jack Balkin and Sanford Levinson’s neglected account of law as performance. I begin with Balkin and Levinson’s observation that both legal and dramatic interpreters are charged with persuading audiences that their readings of texts are “authoritative,” analyzing the relationship between legal and theatrical authority and tradition. I then offer my own theory …
Book Review Essay: Jewish And American Law: A Comparative Study. (Vols. 1 And 2) By Samuel J. Levine, Marie A. Failinger
Book Review Essay: Jewish And American Law: A Comparative Study. (Vols. 1 And 2) By Samuel J. Levine, Marie A. Failinger
Touro Law Review
No abstract provided.
Substantive Due Process And The Politicization Of The Supreme Court, Eric Millman
Substantive Due Process And The Politicization Of The Supreme Court, Eric Millman
CMC Senior Theses
Substantive due process is one of the most cherished and elusive doctrines in American constitutional jurisprudence. The understanding that the Constitution of the United States protects not only specifically enumerated rights, but also broad concepts such as “liberty,” “property,” and “privacy,” forms the foundation for some of the Supreme Court’s most impactful—and controversial—decisions.
This thesis explores the constitutional merits and politicizing history of natural rights jurisprudence from its application in Dred Scott v. Sandford to its recent evocation in Obergefell v. Hodges. Indeed, from slavery to same-same sex marriage, substantive due process has played a pivotal role in shaping …
Is Theocracy Our Politics? Thoughts On William Baude's 'Is Originalism Our Law?', Richard A. Primus
Is Theocracy Our Politics? Thoughts On William Baude's 'Is Originalism Our Law?', Richard A. Primus
Articles
In Is Originalism Our Law?, William Baude has made a good kind of argument in favor of originalism. Rather than contending that originalism is the only coherent theory for interpreting a constitution, he makes the more modest claim that it happens to be the way that American judges interpret our Constitution. If he is right—if originalism is our law—then judges deciding constitutional cases ought to be originalists. But what exactly would the content of that obligation be? Calling some interpretive method “our law” might suggest that judges have an obligation to decide cases by reference to that method. But the …
Neo-Federalist Interpretation Of The Tenth Amendment, Terrence M. Messonnier
Neo-Federalist Interpretation Of The Tenth Amendment, Terrence M. Messonnier
Akron Law Review
This Article argues that the Tenth Amendment was the last relevant legal expression of the resolution of this debate. As such, the Tenth Amendment embodies the conception of who the sovereign is in the American system of government. In Part II, this Article examines the claim that the federal government is sovereign. Specifically, this Article explores constitutional theories and court opinions that treat the federal government as sovereign for all practical purposes. In Part III, this Article considers theories of dual sovereignty and state sovereignty. In Part IV, this Article argues that popular sovereignty accurately reflects the intent of the …
The Popular Sovereignty Foundations Of The Right To Vote, Franita Tolson
The Popular Sovereignty Foundations Of The Right To Vote, Franita Tolson
Schmooze 'tickets'
In recent years, courts and commentators have focused on the federalism-based limits on the power of the federal government, with significantly less attention given to similar constraints on state power. It is not surprising, therefore, that both camps have overlooked that the Ninth and Tenth Amendments, with their reservation of both rights and power “to the people” contain a popular sovereignty principle that affects the constitutionality of various state election law regulations. This goal of this Article is to reaffirm that the people are, in essence, part of the federalism equation, and not simply as protectors of state power, but …
The Ninth Amendment And Individual Rights: A Reply To Professor Mcaffee, Daniel A. Farber
The Ninth Amendment And Individual Rights: A Reply To Professor Mcaffee, Daniel A. Farber
Daniel A Farber
No abstract provided.
The Ninth Amendment In Congress, Brian C. Kalt
The Ninth Amendment In Congress, Brian C. Kalt
Pepperdine Law Review
The Ninth Amendment declares that “[t]he enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” Scholars have developed a rich literature on the Ninth Amendment, but they have focused nearly exclusively on how courts should treat the amendment’s mysterious unenumerated rights. Other scholars have generated an even richer body of work on constitutional interpretation outside the courts. These scholars have written persuasively about the role of Congress as an important participant in constitutional debate and development. However, this work has largely ignored the Ninth Amendment. This article brings these …
Inkblot: The Ninth Amendment As Textual Justification For Judicial Enforcement Of The Right To Privacy, Kurt T. Lash
Inkblot: The Ninth Amendment As Textual Justification For Judicial Enforcement Of The Right To Privacy, Kurt T. Lash
Law Faculty Publications
One of the more indelible moments in late twentieth century legal discourse occurred when Judge Robert Bork described the proper response of a judge confronted with the Ninth Amendment. Nominated to replace retiring Supreme Court Justice Lewis Powell, Judge Bork appeared before the Senate Judiciary Committee and declared that courts had no business enforcing the mysterious clause at all. Given the scarcity of historical evidence regarding the original meaning of the amendment, using the Ninth Amendment to strike down a law would say more about the predilections of the judge than the requirements of the text. Here is the famous …
Blackstone's Ninth Amendment: A Historical Common Law Baseline For The Interpretation Of Unenumerated Rights, Jeffrey D. Jackson
Blackstone's Ninth Amendment: A Historical Common Law Baseline For The Interpretation Of Unenumerated Rights, Jeffrey D. Jackson
Oklahoma Law Review
No abstract provided.
An Essay On The Ninth Amendment: Interpretation For The New World Order, Phoebe A. Haddon
An Essay On The Ninth Amendment: Interpretation For The New World Order, Phoebe A. Haddon
Phoebe A. Haddon
No abstract provided.
Originalism As Jujitsu, Kurt T. Lash
Originalism As Jujitsu, Kurt T. Lash
Law Faculty Publications
The Ninth Amendment presents an irresistible mystery. It speaks of "other rights" retained by the people and it prohibits interpretations which "deny or disparage" those rights. The Amendment, however, tells us nothing about what these rights are or how they can be enforced. On the one hand, this makes the Ninth rather difficult to apply. On the other hand, the lack of definitional clarity also makes the Ninth Amendment something of a desideratum for those seeking expanded judicial protection of previously unrecognized individual rights. Accordingly, the Ninth Amendment has been cited in support of everything from Dial-a-Porn to freedom from …
Taking History Seriously: Reflections On A Critique Of Amar’S Treatment Of The Ninth Amendment In His Work On The Bill Of Rights, Thomas B. Mcaffee
Taking History Seriously: Reflections On A Critique Of Amar’S Treatment Of The Ninth Amendment In His Work On The Bill Of Rights, Thomas B. Mcaffee
Scholarly Works
Dean William Treanor critiques constitutional textualism, contending that it pays too much attention to the words, grammar, and placement of clauses in the Constitution, and too little to the history leading to the adoption of the interpreted language. An important illustration is Professor Amar's treatment of the Ninth Amendment in his well-known book on the Bill of Rights. This treatment shares the perspective that history frequently sheds light on the meaning of constitutional text, but contends that the history yielding the Ninth Amendment demonstrates that it was drafted to secure the rights retained by the granting of limited federal powers—and …
The "Foundations" Of Anti-Foundationalism - Or, Taking The Ninth Amendment Lightly: A Comment On Daniel A. Farber's Book On The Ninth Amendment, Thomas B. Mcaffee
The "Foundations" Of Anti-Foundationalism - Or, Taking The Ninth Amendment Lightly: A Comment On Daniel A. Farber's Book On The Ninth Amendment, Thomas B. Mcaffee
Nevada Law Journal
No abstract provided.
The Ninth Amendment And Individual Rights: A Reply To Professor Mcaffee, Daniel A. Farber
The Ninth Amendment And Individual Rights: A Reply To Professor Mcaffee, Daniel A. Farber
Nevada Law Journal
No abstract provided.
Of Inkblots And Originalism: Historical Ambiguity And The Case Of The Ninth Amendment, Kurt T. Lash
Of Inkblots And Originalism: Historical Ambiguity And The Case Of The Ninth Amendment, Kurt T. Lash
Law Faculty Publications
Ever since Justice Goldberg's concurring opinion in Griswold v. Connecticut, the Ninth Amendment has been a flashpoint in debates over the merits of originalism as an interpretive theory. Judge Bork's comparison of interpreting the Ninth Amendment to reading a text obscured by an inkblot has been particularly subjected to intense criticism. The metaphor has been attacked as erasing the Ninth Amendment from the Constitution, and as representing the inevitably selective and inconsistent use of
text and history by so-called originalists.
It turns out, however, that not only was Judge Bork right to reject Justice Goldberg's reading of the Ninth Amendment, …
A Textual-Historical Theory Of The Ninth Amendment, Kurt T. Lash
A Textual-Historical Theory Of The Ninth Amendment, Kurt T. Lash
Law Faculty Publications
Despite the lavish attention paid to the Ninth Amendment as supporting judicial enforcement of unenumerated rights, surprisingly little attention has been paid to the Amendment's actual text. Doing so reveals a number of interpretive conundrums. For example, although often cited in support of broad readings of the Fourteenth Amendment, the text of the Ninth says nothing about how to interpret enumerated rights such as those contained in the Fourteenth. The Ninth merely demands that such enumerated rights not be construed to deny or disparage other nonenumerated rights retained by the people. The standard use of the Ninth Amendment, in other …
Three Myths Of The Ninth Amendment, Kurt T. Lash
Three Myths Of The Ninth Amendment, Kurt T. Lash
Law Faculty Publications
The breathtakingly broad language of the Ninth Amendment is both a blessing and a curse. It is a blessing for those seeking support for expansive theories of individual rights. Indeed, it is hard to conceive of a theory of individual liberty that cannot find at least rhetorical support in the Ninth Amendment's declaration of retained rights. It is not surprising, therefore, to find the Ninth Amendment invoked in support of everything from Dial-a-Porn to prostitution to organ selling. Once one decides that the Ninth Amendment refers to "other" unnamed individual liberties, there is literally no textual reason to exclude any …
The Inescapable Federalism Of The Ninth Amendment, Kurt T. Lash
The Inescapable Federalism Of The Ninth Amendment, Kurt T. Lash
Law Faculty Publications
Over the past two decades, the most influential work on the Ninth Amendment has been that of libertarian scholar Randy Barnett. Over a series of articles and books, Barnett has presented the Ninth as a provision originally intended to preserve individual natural rights. Recently uncovered historical evidence, however, suggests that the Ninth originally limited federal power in order to preserve the right to local self-government. I presented this evidence in two articles published by the Texas Law Review, the first dealing with the original meaning of the Ninth Amendment, and the second dealing with a heretofore lost jurisprudence of the …
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 …
On Federalism, Freedom, And The Founders' View Of Retained Rights - A Reply To Randy Barnett, Kurt T. Lash
On Federalism, Freedom, And The Founders' View Of Retained Rights - A Reply To Randy Barnett, Kurt T. Lash
Law Faculty Publications
In A Textual-Historical Theory of the Ninth Amendment, 60 Stanford Law Review, I explain how some of the most common theories of the Ninth Amendment either have nothing to do with the actual text of the Amendment or place the text in conflict with similar terms in the Tenth Amendment. Focusing on the actual words of the Amendment, I argue that the text of the Ninth point towards a federalist rule of construction in which the people's retained rights are necessarily left to the control of the collective people in the several states. I also explain how this reading fits …
The Golden Mean Between Kurt & Dan: A Moderate Reading Of The Ninth Amendment, Randy E. Barnett
The Golden Mean Between Kurt & Dan: A Moderate Reading Of The Ninth Amendment, Randy E. Barnett
Georgetown Law Faculty Publications and Other Works
In these remarks given at the Drake Constitutional Law Center Symposium, Professor Randy Barnett addresses his disagreement with Dan Farber's view of the Ninth Amendment in his new book and with Kurt Lash's view of the Ninth Amendment in his recent articles, and he asks why the Ninth Amendment and the Privileges or Immunities Clause of the Fourteenth Amendment have been overlooked.
The author explains that his view is closer to Farber's; however, he asserts that the Ninth Amendment protects all fundamental liberties—not just some. He asserts that Lash incorrectly views the Ninth Amendment as protecting state majoritarianism rather than …
Law Casebook Description And Table Of Contents: Constitutional Environmental And Natural Resources Law [Outline], Jim May, Robin Craig
Law Casebook Description And Table Of Contents: Constitutional Environmental And Natural Resources Law [Outline], Jim May, Robin Craig
The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)
6 pages.
"James May, Widener University School of Law" -- Agenda
Taking Text Too Seriously: Modern Textualism, Original Meaning, And The Case Of Amar's Bill Of Rights, William Michael Treanor
Taking Text Too Seriously: Modern Textualism, Original Meaning, And The Case Of Amar's Bill Of Rights, William Michael Treanor
Georgetown Law Faculty Publications and Other Works
Championed on the Supreme Court by Justices Scalia and Thomas and championed in academia most prominently by Professor Akhil Amar, textualism has in the past twenty years emerged as a leading school of constitutional interpretation. Textualists argue that the Constitution should be interpreted in accordance with its original public meaning and, in seeking that meaning, they closely parse the Constitution's words and grammar and the placement of clauses in the document. They have assumed that this close parsing recaptures original meaning, but, perhaps because it seems obviously correct, that assumption has neither been defended nor challenged. This article uses Professor …
The Ninth Amendment: It Means What It Says, Randy E. Barnett
The Ninth Amendment: It Means What It Says, Randy E. Barnett
Georgetown Law Faculty Publications and Other Works
Although the Ninth Amendment appears on its face to protect unenumerated individual rights of the same sort as those that were enumerated in the Bill of Rights, courts and scholars have long deprived it of any relevance to constitutional adjudication. With the growing interest in originalist methods of interpretation since the 1980s, however, this situation has changed. In the past twenty years, five originalist models of the Ninth Amendment have been propounded by scholars: The state law rights model, the residual rights model, the individual natural rights model, the collective rights model, and the federalism model. This article examines thirteen …
Due Process And Punitive Damages: The Error Of Federal Excessiveness Jurisprudence, A. Benjamin Spencer
Due Process And Punitive Damages: The Error Of Federal Excessiveness Jurisprudence, A. Benjamin Spencer
ExpressO
The Supreme Court, in a line of several cases over the past decade, has established a rigorous federal constitutional excessiveness review for punitive damages awards based on the Due Process Clause. As a matter of substantive due process, says the Court, punitive awards must be evaluated by three “guideposts” set forth in BMW of North America v. Gore: the degree of reprehensibility of the defendant's conduct, the ratio between punitive and compensatory damages, and a comparison of the amount of punitive damages to any “civil or criminal penalties that could be imposed for comparable misconduct.” Following up on this pronouncement …
James Madison’S Celebrated Report Of 1800: The Transformation Of The Tenth Amendment, Kurt T. Lash
James Madison’S Celebrated Report Of 1800: The Transformation Of The Tenth Amendment, Kurt T. Lash
Law Faculty Publications
It has become commonplace to describe the Rehnquist Court as having staged a "Federalism Revolution." Although the current status of the Revolution is in dispute, historical treatment of the Supreme Court's jurisprudence under Chief Justice Rehnquist no doubt will emphasize a resurgence of federalism and limited construction of federal power. Cases like Gregory v. Ashcroft, New York v. United States, United States v. Lopez, Printz v. United States, Alden v. Maine, and United States v. Morrison all share a common rule of interpretation: Narrow construction of federal power to interfere with matters believed best left under state control. The textual …
Who's Afraid Of Unenumerated Rights?, Randy E. Barnett
Who's Afraid Of Unenumerated Rights?, Randy E. Barnett
Georgetown Law Faculty Publications and Other Works
Unenumerated rights are expressly protected against federal infringement by the original meaning of the Ninth Amendment and against state infringement by the original meaning of the Privileges or Immunities Clause of the Fourteenth Amendment. Despite this textual recognition, unenumerated rights have received inconsistent and hesitant protection ever since these provisions were enacted, and what protection they do receive is subject to intense criticism. In this essay, the author examines why some are afraid to enforce unenumerated rights. While this reluctance seems most obviously to stem from the uncertainty of ascertaining the content of unenumerated rights, he contends that underlying this …
The Lost Jurisprudence Of The Ninth Amendment, Kurt T. Lash
The Lost Jurisprudence Of The Ninth Amendment, Kurt T. Lash
Law Faculty Publications
It is widely assumed that the Ninth Amendment languished in constitutional obscurity until it was resurrected in Griswold v. Connecticut by Justice Arthur Goldberg. In fact, the Ninth Amendment played a significant role in some of the most important constitutional disputes in our nation's history, including the scope of exclusive versus concurrent federal power, the authority of the federal government to regulate slavery, the constitutionality of the New Deal, and the legitimacy and scope of incorporation of the Bill of Rights into the Fourteenth Amendment. The second of two articles addressing the Lost History of the Ninth Amendment, The Lost …