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The Inescapable Federalism Of The Ninth Amendment, Kurt T. Lash
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 …
James Madison’S Celebrated Report Of 1800: The Transformation Of The Tenth Amendment, Kurt T. Lash
James Madison’S Celebrated Report Of 1800: The Transformation Of The Tenth Amendment, Kurt T. Lash
Law Faculty Publications
It has become commonplace to describe the Rehnquist Court as having staged a "Federalism Revolution." Although the current status of the Revolution is in dispute, historical treatment of the Supreme Court's jurisprudence under Chief Justice Rehnquist no doubt will emphasize a resurgence of federalism and limited construction of federal power. Cases like Gregory v. Ashcroft, New York v. United States, United States v. Lopez, Printz v. United States, Alden v. Maine, and United States v. Morrison all share a common rule of interpretation: Narrow construction of federal power to interfere with matters believed best left under state control. The textual …
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 …
The Lost Original Meaning Of The Ninth Amendment, Kurt T. Lash
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, …