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A Critical Guide To The Ninth Amendment, Thomas B. Mcaffee
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 …
Originalism And Indeterminacy, Thomas B. Mcaffee
Originalism And Indeterminacy, Thomas B. Mcaffee
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Perhaps the most universal objection to originalism is that it is impossible; that is, the materials relied upon by originalists simply do not yield determinant answers to any worthwhile questions. This indeterminacy objection lacks significant force for at least three reasons. First, the claim that the interpretive materials are always indeterminate vastly overstates the extent and importance of the uncertainties involved; consequently, originalism's critics understate the importance of the originalist canon as a tool for reducing the degree of indeterminacy in constitutional interpretation. Once it becomes clear that originalist methodology can provide some definitive answers, even if significant indeterminacy remains, …
Federalism And The Protection Of Rights: The Modern Ninth Amendment’S Spreading Confusion, Thomas B. Mcaffee
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. …