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Inalienable Rights, Legal Enforceability, And American Constitutions: The Fourteenth Amendment And The Concept Of Unenumerated Rights, Thomas B. Mcaffee

Scholarly Works

It has become common to believe that those who ratified the Fourteenth Amendment “incorporated” not only the specific guarantees of the federal Bill of Rights, but also the other fundamental rights “retained by the people” in the Ninth Amendment. Even among those who acknowledge that the Ninth Amendment was originally a “federalism” provision that simply “retained” all that had not been granted as “powers” to the federal government are those who contend that, in light of the adoption of similar provisions in the state constitutions, by 1866 this language had become a free-floating affirmation of unenumerated rights. This Article attempts …