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Beyond Incorporation, Kurt T. Lash
Beyond Incorporation, Kurt T. Lash
Law Faculty Publications
Incorporation as a theory of constitutional interpretation is dying. Incorporationist scholars are killing it. In this paper, I argue that they are right to do so, whether they mean to or not. The current incorporation debate bears so little resemblance to the theory of incorporation as it originally emerged at the time of the New Deal that I argue it is time to abandon the metaphor of incorporation altogether and admit that what we are after has nothing to do with incorporated texts from 1787. Our search is for the public understanding of texts added to the Constitution in 1868. …
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 …