Law Commons^™

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

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 …

Random Drug Testing, Henry L. Chambers, Jr.

Law Faculty Publications

Random drug testing coexists uneasily with a general Fourth Amendment right to be free of suspicionless government searches. Typically, a governmental search is accompanied by a warrant supported by individualized suspicion, that is, probable cause. Random drug testing involves a search without any particularized suspicion that the subject of the search has used drugs.

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

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 …

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 Original Meaning Of An Omission: The Tenth Amendment, Popular Sovereignty And “Expressly” Delegated Power, Kurt T. Lash

Law Faculty Publications

Today, courts and commentators generally agree that early efforts to strictly limit the federal government to only expressly enumerated powers were decisively rebuffed by Chief Justice John Marshall in McCulloch v. Maryland. According to Marshall, the fact that the framers departed from the language of the Articles of Confederation and omitted the term expressly suggested that they intended Congress to have a broad array of implied as well as expressly delegated powers. As Supreme Court Justice Joseph Story later wrote, any attempt to read the Tenth Amendment as calling for a strict construction of federal power was simply an attempt …

Right To An Attorney, Henry L. Chambers, Jr.

Law Faculty Publications

The Supreme Court has identified two distinct rights to an attorney that stem from the U.S. Constitution. One is rooted in the Fifth Amendment. The other is rooted in the Sixth and Fourteenth Amendments.

Alternative State Remedies In Constitutional Torts, John F. Preis

Law Faculty Publications

In recent years, a subtle shift in constitutional tort doctrine has quietly begun to take root. In Bivens actions, the Supreme Court has recently implied that constitutional tort plaintiffs must seek relief under state law when it is available, rather than invoke their federal constitutional rights. This marks a dramatic change from past practices. For much of the twentieth century, a central premise in the constitutional tort field has been that the federal remedy is "supplementary" to the state remedy; constitutional tort plaintiffs have therefore been permitted to seek a remedy under federal law without regard to the availability of …

Expatriation, John Paul Jones

Law Faculty Publications

Encyclopedia article on expatriation

Procedural Due Process, John Paul Jones

Law Faculty Publications

Encyclopedia article on procedural due process.