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The Lost Original Meaning Of The Ninth Amendment, Kurt T. Lash

Law Faculty Publications

This article presents previously unrecognized evidence regarding the original meaning of the Ninth Amendment. Obscured by the contemporary assumption that the Ninth Amendment is about rights while the Tenth Amendment is about powers, the historical roots of the Ninth Amendment can be found in the state ratification convention demands for a constitutional amendment prohibiting the constructive enlargement of federal power. James Madison's initial draft of the Ninth Amendment expressly adopted the language suggested by the state conventions and he insisted the final draft expressed the same rule of construction desired by the states. In an episode previously unnoticed by scholars, …